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UNIVEftSII  i    Uf  l/HLif-on.^lA 

JUL  2  3 1971 


GOVT.  PUBLICATIONS  DEN". 


LIBRARY   OF   CONGRESS 


GUIDE 


TO  THE 


LAW  AND   LEGAL  LITERATURE 


GERMANY 


BY 

EDWIN   M.   BORCHARD 

LAW  LIBRARIAN 


WASHINGTON 

c,<  i\  I  RNMENT  PRINTING  OFFICE 

1912 


£0 


L.  C.  card,  12-35003 


This  volume  is  for  sale  by  the 

Superintendent  of  Documents 

Government  Printing  Office 

Washington,  D.  C. 

Price,  65  cents 


PREFATORY   NOTE 


The  growing  demand  on  the  part  of  American  lawyers, 
legislators,  and  jurists  for  a  knowledge  of  the  legal  institu- 
tions of  foreign  countries  has  induced  the  Library  of  Con- 
gress to  acquire  and  make  available  to  the  investigator  a 
library  of  comparative  law  in  which  he  may  find  the  impor- 
tant legal  literature  of  the  civilized  States  of  the  world. 
This  guide,  the  first  of  a  series  of  guides  to  foreign  law,  has 
been  prepared  with  a  view  to  furnish  the  investigator  of 
German  law  with  an  aid  in  using  this  material. 

The  necessities  of  the  lawyer  consist  in  ascertaining  the 
legal  rules  under  which  private  individuals  and  their  rights 
are  governed  in  Germany.  This  need  the  guide  endeavors 
to  meet  by  a  detailed  treatment  of  the  institutions  of 
German  private  law  in  its  various  branches.  The  interests 
of  the  legislator  have  been  kept  in  view  by  an  extensive 
discussion  of  the  literature  dialing  with  the  methods  adopted 
in  Germany  to  solve  the  social  and  economic  problems  of 
the  day.  Special  attention  has  therefore  been  given  to 
German  legislation  on  social  insurance  and  labor,  to  the 
preparation  of  legislation,  and  to  modern  research  on  the 
legal  treatment  of  crime.  Finally,  a  recognition  of  the  value 
to  the  jurist  of  the  contributions  of  German  literature  to  the 
development  of  modern  juristic  thought  has  served  to  lay 
emphasis  on  the  sections  dealing  with  legal  education  and 
the  history  and  the  philosophy  of  law. 

3 


4  PREFATORY    NOTE 

This  guide,  therefore,  is  an  attempt  to  furnish  the  American 
lawyer  with  an  introduction  to  the  literature  of  German 
legal  institutions  and  German  juristic  thought.  Leading 
works  only  are  mentioned.  Wherever  possible,  attention 
has  been  called  to  important  contributions,  both  in  the  way 
of  books  and  periodicals,  in  the  English  language;  other- 
wise, except  for  a  few  standard  works  in  French,  the  litera- 
ture discussed  is  confined  to  the  German.  A  glossary  of 
technical  legal  terms,  in  which  the  terminology  adopted  by 
Schuster  has  been  generally  retained,  is  printed  as  an  appen- 
dix. As  the  glossary  serves  to  give  the  English  equivalents 
for  German  terms,  the  subject  entries  in  the  index  are  con- 
fined to  the  English  legal  terminology.  In  the  matter  of 
capitalization  in  the  titles  of  books  the  A.  E.  A.  catalogue 
rules  have  been  followed. 

For  the  present,  works  on  the  law  of  the  individual  Ger- 
man States  are  not  referred  to,  with  an  occasional  exception 
in  the  case  of  Prussia.  Works  on  Roman  law,  except  such 
treatment  of  the  Pandects  as  may  be  considered  an  introduc- 
tion to  modern  German  law,  and  in  general,  works  on  com- 
parative law  and  international  law,  are  omitted. 

This  occasion  is  taken  to  express  the  author's  thanks  and 
appreciation  to  Judge  Karl  von  Lewinski,  secretary  of  the 
Internationale  Vereinigung  fur  Vergleichende  Rechtswissen- 
schaft  of  Berlin,  and  to  Prof.  W.  F.  Dodd  of  the  University 
of  Illinois  for  their  kindness  in  reading  the  manuscript  and 
for  their  valuable  suggestions. 

Edwin  M.  Borchard 

Law  Librarian 

Herbert  Putnam 

Librarian  of  Congress 

Washington,  D.  C,  April,  1912 


CONTENTS 

Pago. 

Prefatory  note 3 

Contents 5 

Introduction 7 

Bibliography 11 

Legislation 14 

Court  reports 15 

Legal  education 18 

Jurisprudence: 

Legal  encyclopedia 21 

Philosophy  of  law 24 

Legal  history: 

General 41 

Leges  Barbarorum 47 

German  Pri vatrecht 49 

Prussian  Landrecht 51 

Saxon  Code 52 

Baden  Landrecht 52 

Reception  of  Roman  law,  Pandektenrecht 52 

Civil  Code: 

History 56 

Legislative  history 56 

Contents 62 

Introductory  act 67 

General  literature 70 

Individual  parts  of  the  code ;~ 

Subjects  related  to  the  Civil  Code — 

Equitable  trust 7S 

Association  and  public  meeting,  law  of 78 

Land  Registry  Act 81 

Eminent  Domain 83 

Personal  Status  Registration  Act 85 

Inheritance  taxes 87 

Literary  and  industrial  property — 

Copyright   90 

Patents 

Useful  models 93 

Trademarks 94 

Unfair  competition 94 

Commercial  law: 

Commercial  Code — 

History 97 

Contents 98 

General  literature 99 


6  CONTENTS 

Commercial  law — Continued.  Page. 
Commercial  Code — Continued. 

Individual  parts  of  code 103 

Stock  corporations 103 

Commandite  company 104 

Limited  liability  partnership 105 

Cooperative  societies 105 

Railroad  law,  carriers 106 

Automobiles 107 

Maritime  law 108 

Seamen 's  Act 1 09 

General  average 1 1 1 

Marine  insurance 1 1 1 

Inland  navigation m 

Subjects  related  to  the  Commercial  Code — 

Bills  of  exchange 112 

Cheques 113 

Stock  exchange  law 114 

Banking  law 115 

Custody  of  negotiable  instruments 115 

Mortgage  bank  law 115 

Bankruptcy 116 

Creditors'  suits 116 

Trusts  and  monopolies 117 

Insurance  (commercial) 118 

Social  insurance  and  labor  laws: 

Employer's  liability 121 

Workmen's  Insurance  Code 123 

Industrial  Code 135 

Labor  laws 137 

Civil  procedure: 

Code  of  Civil  Procedure 14° 

Judiciary  Act 141 

Costs  and  fees 149 

Attorneys  at  law 150 

Noncontentious  jurisdiction 151 

Criminal  law 153 

Criminal  procedure 158 

Military  criminal  law 163 

Reform  of  criminal  law  and  procedure 164 

Public  law: 

General 171 

Constitutional  law 174 

Ecclesiastical  law 17° 

Colonial  law !77 

Administrative  law 178 

Miscellaneous 186 

Glossary  of  German  legal  terms 189 

Index "3 


GUIDE  TO  THE   LAW  AND  LEGAL 
LITERATURE  OF  GERMANY 


INTRODUCTION 

International  intercourse,  in  commerce,  travel,  and  scholar- 
ship, has  brought  about,  to  the  great  advantage  of  universal 
knowledge,  a  better  understanding  of  the  conditions  under 
which  the  people  of  foreign  countries  live.  The  ever  increas- 
ing  presence  of  Americans  abroad  and  the  constant  tendency 
of  commerce  to  become  more  international  have  emphasized 
the  necessity  of  knowing  the  legal  conditions  which  prevail  in 
foreign  countries.  Moreover,  our  gradual  recognition  of  the 
truth  of  Jhering's  thesis  that  law  is  not  wholly,  nor  even 
mainly,  a  national  product  makes  more  than  desirable  an 
acquaintance  with  foreign  juristic  thought. 

The  law  and  legal  literature  of  Germany  have  been  selected 
for  treatment  in  our  first  guide  for  several  reasons:  First,  of 
the  countries  not  subject  to  the  common  law,  Germany  is  the 
most  important  commercially;  secondly,  its  efforts  to  solve 
the  social  and  economic  problems  of  the  day  have  elicited  well- 
earned  admiration;  thirdly,  in  legal  science,  German  research 
in  the  last  generation  has  intensified  the  truth  of  Sheldon 
Amos'  remark  made  forty  years  ago: 

The  prospects  of  the  science  of  jurisprudence  .  .  .  will  depend 
largely  upon  a  greater  familiarity  than  lias  hitherto  been  encouraged  in 
legal  education,  with  the  vast  and  invaluable  juridical  literature  of 
Germany  .  .  .  Modern  jurisprudence  is  emphatically  a  German 
creation.     (Science  of  jurisprudence,  p.  505.) 

For  the  practitioner  a  knowledge  of  foreign  law  and  how  to 
find  it  is  of  importance  because  of  the  constant  growth  in  inter- 
national commercial  relations,  and  because  of  the  increasing 

7 


8  GUIDE  TO  THE  EAW  OF  GERMANY 

number  of  nationals  resident  abroad  temporarily  or  perma- 
nently, who  marry  there,  enter  into  other  legal  relations  of 
every  description,  and  leave  estates. 

For  the  legislator  the  practical  value  of  comparative  law 
appears  by  an  examination  of  the  various  ways  in  which 
economic  and  social  problems  have  been  dealt  with  abroad. 
The  recent  investigations,  by  various  Federal  commissions, 
of  the  European  solutions  of  certain  economic  problems,  the 
researches  into  foreign  social  legislation  by  our  national  and 
State  legislatures,  the  investigation  of  the  methods  adopted 
abroad  for  the  legal  treatment  of  crime,  all  illustrate  our 
gradual  emancipation  from  an  insular  view  of  legal  institu- 
tions and  a  recognition  of  the  practical  value  of  profiting  from 
the  experiments  of  others. 

For  the  jurist,  however,  a  knowledge  of  the  contributions 
of  continental  Europe,  and  especially  of  Germany,  to  legal 
science,  is  of  still  greater  importance.  Only  in  recent  times 
have  we  begun  to  lose  our  indifference  to  the  progress  of  the 
science  of  law  abroad  and  to  awaken  to  a  realization  of  its 
practical  importance.  Social  legislation  during  the  last  gen- 
eration and  researches  into  legal  history  have  created  a 
revolution  in  the  concept  of  law  and  of  its  relation  to  social 
and  political  science,  from  which  it  springs  and  to  whose 
development  it  ministers. 

Coke  admired  the  common  law  for  its  certainty,  because 
derived  from  actually  decided  cases,  and  disparaged  the  civil 
law  for  its  uncertainty,  as  evidenced  in  the  disputations  of 
legal  scholars.  The  applicability  of  this  characterization  of 
the  two  great  systems  of  law  has,  in  the  course  of  time,  become 
almost  reversed.  The  thousands  of  decided  cases  since  Coke's 
day,  "the  tangled  mass  of  irreconcilable  contrarieties"  has,  as 
Bryce  puts  it,  created  the  two  great  defects  of  case  law, 
uncertainty  and  an  utter  lack  of  system,  which  in  turn  have 
been   imparted    to    the  whole  structure   of    Anglo-American 


IXTRODtCTION  9 

law.      Pollock's    characterization    of     English     cast     law    as 

"chaos  tempered   by    Fisher's    Digest"    is,    with   aggravated 

reason,  applicable   to  this  country:     American  case-law  as  a 

whole  may  not  unfairly  be  described  as  chaos,  tempered  by 

the  digests   of   enterprising   publishing    companies.      Finding 

the  law  has  to  a  great  extent  become  a  mechanical  process  in 

which  legal  thinking  is  reduced  to  a  minimum  and  in  which 

catchwords  have  replaced  legal  principles. 

Maitland  expressed  his  appreciation  of  the  unsatisfactory 

state  of  English  law  in  these  words: 

But  turn  from  laws  to  law.  Turn  from  bits  of  our  legal  system  to  the 
svstem  as  a  whole.  Do  we  often  think  of  it?  Do  we  often  ask  ourselves 
whether  it  compares  well  with  its  neighbors  and  rivals,  whether  it  is  in 
all  respects  rational,  coherent,  modern,  worthy  of  our  country  and  our 
century?     I  fear  that  we  do  not.     (Collected  Papers  III,  pp.  474-475.) 

What  then  can  we  say  of  our  fifty  sovereign  jurisdictions,  our 
mass  of  conflicting  decisions,  our  multiplicity  of  legal  rules 
applied  to  an  identical  state  of  facts?  In  England,  Brvce 
tells  us,  the  efforts  at  codification  were  given  up  in  despair 
In  this  country,  we  have  been  more  courageous;  the  project 
of  an  American  Corpus  Juris  has  enlisted  much  popular  sup 
port.  Any  attempt  to  lead  us  out  of  our  "judicial  detritus*' 
will  be  greeted  with  favor.  And  yet,  one  of  our  foremost 
jurists,  Wigmore,  has  expressed  grave  doubts  as  to  its  timeli- 
ness, its  soundness,  and  its  feasibility.  As  a  profession, 
American  lawyers  are  almost  wholly  untrained  in  that  tech- 
nique of  legal  science  which  must  precede  any  attempt  at  sys- 
tematic statement  of  the  law.  Our  law  has  grown  up  so 
rapidly  and  so  heterogeneously  that  it  is  almost  impossible 
now,  in  many  important  branches,  to  find  any  thread  of  legal 
principle.  To  a  philosophy  of  law,  we  are  practically  total 
strangers.  Again,  as  Pound  has  pointed  out,  much  of  our 
common  law,  e.  g.,  the  assumption  of  risk,  liberty  of  contract, 
the  right  to  pursue  a  lawful  calling,  etc.,  is  academic,  becatisi 
derived  by  deduction  from  historical  premises  which  haw  lost 


IO  GUIDE   TO   THE   LAW   OF   GERMANY 

their  value  and  hence  much  of  their  meaning  for  the  societ) 
of  to-day.  The  traditional  attitude  of  the  common  law 
toward  legislation,  indeed,  lias  often  proved  a  serious  obstacle 
to  social  progress. 

What,  on  the  other  hand,  has  been  the  fruit  of  the  years  of 
disputation  of  continental  jurists?  It  is  this:  they  have 
worked  out  a  scientific  body  of  law,  a  system  of  principles 
supported  bv  a  sound  philosophy,  which,  as  exemplified  in  the 
German  Civil  Code,  has  awakened  the  admiration  of  the  civil- 
ized world.  They  have  brought  to  active  realization  Holmes' 
declaration  that  the  true  science  of  the  law  consists  mainly  in 
the  establishment  of  its  postulates  from  within  upon  accu- 
rately measured  social  desires,  instead  of  tradition.  Maitland 
in  the  introduction  to  his  translation  of  Gierke's  Political 
theories  of  the  middle  age  says  of  the  German  Civil  Code  that 
"it  is  the  most  carefully  considered  statement  of  a  nation's 
laws  that  the  world  has  ever  seen."  German  codification 
trulv  exemplifies  a  power  of  legal  expression  with  which  Bryce 
credits  the  Roman  jurists — "the  power  of  so  framing  general 
rules  as  to  make  them  the  expression  of  legal  principles,  and 
of  working  out  these  rules  into  their  details  so  as  to  keep  the 
details  in  harmony  with  the  principles."     (Studies,  II,  p.  208.) 

In  Europe  the  application  of  the  historical  and  comparative 
method  to  jurisprudence  has  created  a  school  of  jurists  who 
have  helped  to  make  law  an  effective  handmaid  in  the  devel- 
opment of  social  and  political  science  in  general.  The  great 
economic  and  social  problems  now  before  our  country  require, 
therefore,  something  more  than  an  outworn  insular  conception 
of  law.  They  require  a  jurisprudence  of  vitality,  fashioned  to 
meet  social  ends  as  a  regulative  agency  in  the  adjustment  of 
individual  interests,  and  a  legal  philosophy  which  shall  draw 
its  force  from  Mr.  Justice  Holmes'  "secret  root"  of  the  law — 
the  conscious  recognition  of  social  utility. 


(,  TIDE   TO   THE   LAW   OF   GERMANY  II 

BIBLIOGRAPHY 

The  most  useful  bibliography  of  the  legal  literature  of  Ger- 
many, covering  the  period  from  the  middle  of  the  eighteenth 
to  the  middle  of  the  nineteenth  centuries  is  the  Bibliotheca 
juridica,  first  edited  by  Theodore  C.  F.  Enslin,  and  published 
in  a  second  edition,  with  a  supplementary  volume,  by  Wil- 
helm  Engelmann  (Leipzig,  W.  Engelmarm,  1840,  1849).  In 
addition  to  its  exhaustive  bibliographic  information,  the  work 
is  provided  with  a  brief  subject  catalogue.  The  period  from 
1849  to  1867  is  covered  by  G.  W.  Wuttig's  Bibliotheca  juridica 
(Leipzig,  O.  A.  Sehulz,  1867).  The  work  includes  a  subject 
catalogue  and  a  summary  of  the  contents  of  the  important 
periodicals  published  during  the  period  covered.  The  firm  of 
Manz  &  Co.  in  Vienna  published  a  Bibliotheca  juridica  in  1871 
(5th  ed.)  which  was  intended  to  catalogue  the  most  important 
legal  literature  of  Germany  and  Austria  in  print  at  that  time. 

The  bibliographies  of  modern  German  law  may  be  said  to 
commence  in  1868  with  the  appearance  of  Muhlbrecht,  Uber- 
sicht  1I1  r  gesammten  slaats-  und  rechtswissenschafttichen  liter atur, 
published  by  Puttkammer  and  Muhlbrecht  in  Berlin.  It  is 
issued  bimonthly  and  appears  each  year  as  a  bound  volume 
under  the  title  AUgemeine  bibliographic  dei  gi  tammten  staats- 
und  rechtswissenschafttichen  liter  atur.  The  separate  numbers 
are  somewhat  tardy  in  appearance.  While  primarily  impor- 
tant for  the  German  literature,  it  contains  sections  devoted  to 
English,  French,  Spanish,  and  Scandinavian  legal  bibliographies. 
Muhlbrecht  also  compiled  a  Wegwi  isi  1  durch  tlic  neuere  literatur 
der  rechls-  und  slaalxui^ocu  hajtcn,  which  appeared  in  two  vol- 
umes, the  first  volume  (second  edition)  in  1893  and  the  second 
in  1901 ;  this  is  largely  a  subject  bibliography  of  the  titles  in 
the  annual  volumes  which  appeared  up  to  1900.  The  Juris- 
tisches  literaturblalt,  edited  by  Alfred  Keil  (published  by 
C.  Heymann  in  Berlin,  ten  parts  per  year,  beginning  1894), 


12         GUIDE  TO  THE  LAW  OF  GERMANY 

contains  short  critical  bibliographies  on  special  subjects,  as 
well  as  extensive  book  reviews.  The  Juristische  noviidten 
which  has  appeared  annually  since  1895  (editor,  J.  A.  Barth; 
publisher,  M.  Dietrich,  Leipzig),  is  a  critical  review  of  deci- 
sions of  importance;  it  includes  lists  of  recent  books  both  Ger- 
man and  foreign.  A  valuable  publication  was  that  inaugu- 
rated by  Prof.  Kirehenheim  in  1881,  entitled  Centra/Matt  fur 
rechtswissenschajt  (Leipzig,  Hinrichs).  It  consisted  of  book 
reviews,  summaries  of  the  contents  of  periodicals  and  lists  of 
the  new  German  and  foreign  works  on  law.  In  September, 
1910.it  ceased  publication,  its  activities  being  taken  over  by 
the  Internationale  bibliographic  der  rechtswissenschajt,  which 
by  its  addition  of  indexes  to  periodical  articles  and  its 
subject  classification  promises  to  be  the  most  important  mod- 
ern bibliography  of  law.  This  publication,  which  appears 
monthly,  also  takes  account  of  works  and  periodical  articles  in 
foreign  languages.  It  is  published  by  the  Internationales  In- 
stitnt  fur  Bibliographic  der  Rechtswissenschajt.  Since  January, 
1 91 1,  this  bibliography  is  issued  in  five  different  languages, 
including  an  American  edition  {Bibliography  of  legal  science) 
edited  by  Edwin  M.  Borchard  (University  of  Chicago  Press). 
The  Kritische  blaeitcr  fur  die  gesammten  sozialwissenschajten 
(Berlin,  Zentralverlag)  began  publication  in  1905,  dropping  the 
first  word  from  its  title  in  1908.  Since  January,  191 1 ,  monthly 
numbers  of  this  publication  also  appear  in  English  under  the 
title  Bibliography  of  social  science  (Chicago,  University  of 
Chicago  Press).  It  takes  note  of  such  legal  articles  as  have  a 
socio-economic  interest.  A  bibliography  of  the  principal  Ger- 
man law  books  published  during  the  year  appears  in  the  An- 
nual Bulletin  of  the  Comparative  Law  Bureau.  A  work  which 
devotes  itself  especially  to  careful  book  reviews  is  the  Kri- 
tische vierteljahresschrift  fur  geselzgebung  und  rechtswissen- 
schaft,  which  superseded  the  Kritische  ueberschau  der  deutscht  11 
geselzgebung  (Munich,  1853-1859), and  which  since  i859has  been 


BIBLIOGRAPHY  13 

issued  as  an  annual  volume.  It  was  originally  edited  by  Profs. 
Arndts,  Bluntschli  and  Pozl,  and  among  its  present  editors  are 
l'rofs.  Birkmeyer  and  Ullmann  of  Munich.  The  publisher  is 
Theodor  Ackermann,  Munich.  The  Zeitschrift  jur  die  gesamfe 
strafrcchtML'isMHscluift  (Berlin,  J.  Guttentag)  devotes  one  of 
its  numbers  each  year  to  a  critical  survey  of  recent  litera- 
ture in  various  departments  of  law,  especially  emphasizing 
general  jurisprudence,  legal  history,  criminal  law  and  procedure 
and  law  reform.      It  is  a  valuable  source  of  information. 

The  appearance  of  the  German  Civil  Code  stimulated  the 
publication  of  bibliographies  especially  devoted  to  the  civil 
law.  The  most  important  of  these  is  compiled  by  Dr.  Georg 
Maas,  formerly  assistant  librarian  of  the  Supreme  Court  of 
Germany  and  now  librarian  of  the  Imperial  Military  Court  at 
Berlin.  His  systematic  subject  bibliography  of  German  civil 
law  began  issue  in  1888,  one  volume  covering  the  years  1888 
to  1898,  subsequent  volumes  being  published  annually  from 
1899  to  1903.  The  first  volume  (covering  1888  to  1898) 
also  appears  as  volume  16  of  the  Archiv  fy/r  burgerliches  reckt, 
which  periodical  in  its  succeeding  volumes  contains  the  annual 
bibliographies  of  Dr.  Maas.  For  the  years  1905  and  1906  Dr. 
Maas  published  a  Jurisprxulentia  Germaniae,  which,  under  care- 
ful subject  divisions,  covers  the  entire  literary  producti  n  in 
German  law  during  the  year.  Unfortunately,  the  life  of  this 
publication  was  limited  to  two  years.  It  may  be  of  advam  1 
to  mention  theBibliotheca  juridica,  which,  in  the  form  of  a  small 
booklet,  is  published  each  year  by  an  association  of  German 
law  book  publishers;  wit li  very  brief  titles,  it  presents  the 
principal  legal  works  still  in  print,  with  the  year  of  publication 
and  the  price,  under  subject  division.  Hinrichs  in  Leipzig 
publishes  quarterly  a  pamphlet  known  as  Neue  bucket  uber 
rechts-  und  staatsvrissenschaften,  which  is  a  reprint  from  his 
Vi  liiljuhii  t-katalog der  neuigkeiU  n  d>  s  deutschen  buchhandels. 
The  two  leading  law  libraries  in  Germany  have  published  cat 


14         GUIDE  TO  THE  LAW  OF  GERMANY 

alogues,  the  most  recent  being  that  of  the  Reichsjustizamt 
(Department  of  Justice)  in  Berlin,  a  third  edition  of  which  ap- 
peared in  1909.  The  Rcichsgericht  (Supreme  Court)  at  Leipzig 
published  a  two  volume  catalogue  (1882  and  1890),  subsequent 
accessions  appearing  in  the  form  of  manuscript  supplements. 

LEGISLATION 

The  official  legislation  of  modern  Germany  may  be  said  to 
commence  with  the  formation  of  the  North-German  Feder- 
ation in  1867.  During  the  four  years  following,  up  to  the 
establishment  of  the  Empire,  there  appeared  annually  the 
Bundesgesetzblatt  des  norddeutschen  bundes  published  at  Berlin. 
Since  1871,  the  official  Reichsgesetzblatt  has  been  published;  it 
contains  the  laws  passed  by  the  Reichstag,  and  the  Vcrord nun- 
gen  (decrees)  of  the  Bundesrat  (Federal  Council).  It  is  issued 
in  slip  form  promptly  after  the  promulgation  of  a  law  or  decree, 
and  is  bound  in  an  annual  volume.  An  index  covering  the  leg- 
islation down  to  1896  was  published  officially  at  Berlin  in  1897. 
A  private  index  to  the  statutes  was  published  by  Frederic  Pfaff , 
covering  the  years  1867  to  1890;  two  thin  volumes  by  Hans 
Becker  bring  the  index  down  to  1907.     They  are  published  in 

Mainz  by  J-  Diemer. 

An  important  private  collection  of  the  legislation  of  Prussia 
and  Germany  is  edited  by  C.  A.  Grotefend,  Privy  Councillor, 
in  six  volumes,  including  an  index.  This  work  covers  the 
legislation  from  1806  to  1899  inclusive,  under  the  title  Preus- 
sisch-Deutsche  gesetzsammliing,  1 806-1 899.  Since  1899  an 
annual  volume  has  appeared  under  the  title  Das  gesammte 
deutsche  und  preussische  gesctzgebnngs-material.  This  reprints 
the  legislation  of  the  Empire  and  of  Prussia  and  all  the  decrees 
and  ordinances  published  in  the  official  Miwisterialbldtter, 
twelve  in  all.  It  may  be  called  a  yearbook  of  legislation.  The 
internal  arrangement  of  the  material  follows  no  definite  order, 
but  the  work  is  supplied  with  an  excellent  systematic  sum- 


COURT   REPORTS  I  5 

inary,  by  subject  matter,  together  with  a  chronological  table 
of  the  legislative  activities  of  every  governmental  department. 
It  is  now  edited  by  Dr.  C.  Cretschmar,  District  Attorney.  The 
whole  series  is  published  by  L.  Schwann  in  Diisseldorf,  1900 
to  date.  A  useful  reference  work,  which  contains  the  prin- 
cipal laws  of  the  Empire,  is  published  by  Bruer  &  Co.  in  Berlin, 
under  the  title  Deutsch  i  n  ichsgesetzbuch  fur  Industrie,  handel 
und  gewerbe;  it  is  now  in  its  forty-third  edition,  and  consists 
of  two  very  large  volumes.  A  new  edition  appears  about 
every  two  years. 

Excellent  annotated  editions  of  the  principal  laws  of  the 
Empire  are  published  by  the  firm  of  Guttentag  in  Berlin 
under  the  title  Guttentag' sche  sammlung  deutscher  reichs- 
gesetze.  New  editions  of  the  more  important  volumes  appear 
frequently.  The  series  now  contains  one  hundred  volumes. 
Another  collection  of  the  important  laws,  somewhat  less 
useful  than  those  mentioned  above,  is  that  edited  by  Hue  de 
Grais,  entitled  Handbuch  der  geselzgebung  von  Preussen  und 
dem  deutschen  reiche  (Berlin,  Julius  Springer,  1901-1906).  This 
contains  the  legislation  of  the  Empire  and  Prussia  under 
broad  subject  divisions.  It  is  to  consist  of  forty  volumes,  of 
which  twelve  have  so  far  been  issued.  A  number  of  publishing 
firms  in  Germany,  as,  for  example,  Bensheimer,  Goschen  and 
Rossberg,  publish  small  and  very  cheap  annotated  editions 
of  the  principal  laws. 

COURT  REPORTS 

The  decisions  of  courts  in  Germany  are  not  binding  prece- 
dents, even  on  inferior  courts.  Judicial  precedents  in  fact 
are  not  considered  a  source  of  law,  altho  they  have  evidentiary 
value.  The  persuasive  force  of  decisions,  however,  is  meeting 
with  ever  increasing  recognition.  This  is  attested  by  the  grow- 
ing number  of  court  reports  published  and  the  frequency  with 
which  decided  cases  are  cited.     The  decisions  of  every  impor- 


1 6         GUIDE  TO  THE  LAW  OF  GERMANY 

tant  court  are  published  regularly.  A  few  sections  in  Gray's 
Nature  and  sources  of  the  law  (New  York,  Columbia  Univer- 
sity Press,  1909),  pp.  193-198  are  devoted  to  a  discussion  of 
the  history  and  force  of  judicial  precedents  in  Germany. 
The  same  work  contains  interesting  discussions  of  the  extent 
to  which  custom  and  the  opinions  of  experts  may  be  con- 
sidered a  source  of  law.  In  the  course  of  an  article  entitled 
"Judicial  precedents — a  short  study  in  comparative  juris- 
prudence" (9  Harvard  Law  Review  (1895),  pp.  27-41)  Prof. 
Gray  had  already  shown  his  interest  in  this  question  of  the 
force  of  judicial  precedent  in  countries  not  subject  to  the 
common  law. 

The  principal  court  decisions  in  Germany,  are,  of  course, 
those  of  the  Reichsgericht,  the  Supreme  Court  of  the  Empire. 
Before  the  Judiciary  Act  of  1877  (in  effect  Oct.  i,  1879)  which 
established  the  present  Supreme  Court,  the  highest  tribunal 
in  Germany  was  called  the  Reichsoberhandelsgericht.  It  sat 
from  1 87 1  until  the  end  of  1879.  Its  jurisdiction  was  much 
more  limited  than  that  of  the  present  court.  Its  decisions 
were  published  in  a  series  edited  by  a  committee  of  judges  of 
the  court,  under  the  title  Entscheidungen  des  reichsoberhandels- 
gerichts  (25  volumes  and  4  indexes,  Stuttgart,  F.  Enke,  1873- 
1880).  The  decisions  of  the  present  Supreme  Court  as  estab- 
lished by  the  Judiciary  Act  of  January  27,  1877,  are  published 
in  two  series,  civil  cases  and  criminal  cases,1  edited  by  a  mixed 
committee  of  members  of  the  court  and  its  bar.  Both  series 
began  in  1880,  two  or  three  small  volumes  appearing  annually. 
A  systematic  compilation  of  the  important  decisions  of  the 
Supreme  Court  in  civil  matters,  Die  rechtsprechung  des  reichs- 
gerichts,  by  Hugo  Neumann  began  to  be  published  in  1910 

1  Entscheidungen  des  reichsgerichts  in  zivilsachen.      Leipzig,  Veit  & 

Co.,  1S80-1911.     76  v.     5  indexes  (to  v.  70). 
Entscheidungen  des  reichsgerichts  in  strafsachen.     Leipzig,  Veit  &  Co., 

1880-1911.      45  v.,  index  to  v.  1-35  by  D.  Suppes,  Leipzig,  Veit, 

1902. 


COURT   REPORTS  I  7 

(Berlin,  Yahlen).  The  decisions  of  the  Supreme  Court  in 
civil  cases  not  reported  in  the  official  series,  are  published  in 
an  annual  volume  by  Warneyer,1  who  undertakes  regularly 
to  compile  the  decisions  handed  down  during  the  year  on 
various  branches  of  law. 

Another  court  report  of  considerable  importance,  edited  by 
Mtigdan  and  Falkmann,  began  publication  with  the  coming 
into  force  of  the  Civil  Code  in  1900  and  reports  the  decisions 
of  the  Courts  of  Appeal  of  the  Empire  (Oberlandesgerichie)2 
in  all  matters  of  private  law.  Only  public  law  and  criminal 
matters  are  excluded.  The  decisions  are  divided  by  subject 
matter  according  to  the  various  codes  or  statutes  which  they 
construe.  The  publication  is  now  in  its  twenty-second  vol- 
ume, two  volumes  being  published  annually.  Another  report 
of  established  reputation  in  Germany  began  in  1847  and  is 
known  under  the  title  Seufjert's  Archiv.3  It  reports  the  de- 
cisions of  the  highest  courts  of  the  States  of  Germany,  the 
decisions  being  divided  according  to  subject  matter.  So  far  66 
volumes  have  appeared,  and  an  index  to  the  first  55.  Deci- 
sions in  administrative  matters  are  collected  in  a  set  of  reports 
called  Entscheidungen  dry  gerichte  und  verwaliungsbehorden, 
edited  by  A.  Reger,  and  at  present  published  at  Munich  by 
Beck.  They  include  decisions  in  administrative,  industrial, 
and  criminal  matters,  as  well  as  in  matters  of  social  insurance 
in  all  its  branches.  The  publication  began  in  1881;  up  to 
the  present,  30  volumes  have  appeared. 

1  Warneyer 's  Jahrbuch  der  entscheidungen.     Erganzungsband  enth.  die 

recbtsprechung  des  reichsgerichts  auf  detn  gebiete  dis  zivilrechts, 
smuit  siu  nicht  in  der  amtlichen  sain  in  lung  .  .  .  abgcdruckt  ist. 
Leipzig,  Rossberg. 

2  Die   Recbtsprechung  der  oberlandesgerichte,  edited  by  B.  Mugdan 

mill  R.  Falkmann,  (judges of  the  court  of  appeal  in  Prussia).  Leip- 
zig,  Wit,    lyOO-KJII.       22  V. 

3  J.  U.  Seuffert's  Archiv  fiir  entscheidungen  der  obersten  gerichte  in 

den  deutschen  staaten  hrsg.  von  A.  F.  Preusser.     Munchen,  1847 

and  cont. 
29774° — 12 2 


1 8         GUIDE  TO  THE  LAW  OF  GERMANY 

Since  1900,  there  has  been  published  a  small  annual  vol- 
ume of  headnotes  of  the  important  decisions  of  the  courts. 
This  collection  Rechtsprechung  zum  gesamten  zivil-  handels-  u. 
prozessrecht,  edited  by  Th.  Soergel,  is  extremely  popular 
among  practitioners  (Stuttgart,  Deutsche  Verlagsanstalt). 
The  decisions  of  the  highest  court  of  Prussia  are  edited  by 
Johow  and  Ring  in  an  annual  volume,  Jahrbuch  fur  entschei- 
dungen  des  kammergerichts  (Berlin,  Vahlen,  1884  ff).  De- 
cisions covering  more  specific  subjects  will  be  mentioned  under 
their  respective  heads  in  the  course  of  this  Guide. 

LEGAL   EDUCATION 

The  subject  of  legal  education,  including  the  prerequisites 
for  the  study  of  law,  has  always  been  a  matter  of  great  im- 
portance in  Germany.  In  recent  years  it  has  become  espe- 
cially prominent  because  of  the  discussions  as  to  the  relative 
importance  of  theoretical  study  and  practical  experience,  and 
as  part  of  the  general  movement  for  law  reform.  A  great 
part  of  the  191 1  session  at  Wiirzburg  of  the  German  Bar 
Association  Deutscher  Anwallsverein1  was  devoted  to  a  dis- 
cussion of  the  question  "What  reforms  in  the  training  of  law- 
students  are  to  be  recommended?"  The  results  of  the  dis- 
cussion are  of  international  interest.  The  question  of  legal 
training  for  the  German  lawyer  and  judge  was  treated  at 
length  in  the  expert  opinion  of  Dr.  Boyens  of  Leipzig,  who 
entered  into  an  interesting  comparison  with  the  present  state 
of  legal  education  in  England,  drawing  upon  English  and 
German  literature  in  the  course  of  his  paper.     This  portion  of 

1  Every  two  years,  alternating  with  the  Deutsche  Juristentag  (Confer- 
ence of  German  Jurists),  the  German  practising  lawyers,  united  as 
the  Deutsche  Anwaltsverein  (German  Bar  Association),  meet  to 
deliberate  on  important  questions  of  law  and  legislation.  The  organ 
of  the  Jurists  is  the  Deutsclw  Juristentag;  that  of  the  Anwaltsverein 
is  the  Juristische  Wochenschrift. 


LEGAL   EDUCATION  1 9 

the  proceedings  may  be  found  in  the  supplement  to  the  Juris- 
tische  wochenschrift,No.  20,  191 1.  A  brief  report  appeared  in 
the  Law  Journal  (London)  of  October  7,  191 1,  volume  46  (No. 
2386),  page  607. 

Two  contributions  to  the  literature  on  legal  education,  pub- 
lished in  [909  and  1910  by  Prof.  Ernst  Zitclmarm  '  of  Bonn 
and  Prof.  Erwin  Grueber2  of  Munich  respectively,  are  worthy 
of  special  mention.  Both  are  entitled  Die  vorbildung  der 
juristen.  They  represent  opposing  views.  Dr.  v.  Goz,  in  a 
n  view  of  Grueber's  booklet  in  a  recent  number  of  the  Archil 
fur  offentliches  recht  (v.  28,  heft  2-3,  1911,  pp.  369-372), 
gives  a  brief  account  of  the  whole  movement  for  the  reform 
of  legal  education  and  other  related  matters.  Dr.  H.  B. 
Gerland  of  Jena,  who  recently  published  two  large  volumes 
on  English  judicial  organization  and  procedure,  has  also  con- 
tributed a  small  volume  to  the  much  discussed  question  of 
the  reform  of-  legal  education.3  A  synopsis  of  its  contents 
by  Prof.  Beling,  of  Tubingen,  may  be  found  on  page  tj 3  of 
volume  31  ( 1 9 1 1 )  of  the  Zeitschrijt  fur  die  gesamte  strajrecht'.- 
wissenschajt. 

A  number  of  important  contributions  to  the  subject  have 
been  made  in  articles  in  English,  to  which  it  seems  desirable  to 
call  attention.  The  preliminary  training  and  social  standing 
of  the  German  lawyer  of  the  first  half  of  the  nineteenth  century 
are  discussed  in  tin  course  of  an  article  in  the  Law  Magazine, 
volume  13  (1835),  pages  287-309,  under  the  title  "State  of  the 
bar  in  Prance,  Germany,  Spain  and  Italy."  The  modern  Ger- 
man law  student  and  his  training  are  discussed  by  Prof.  Knist 

1  Zitelmann,    Ernst.     Die   vorbildung  der  juristen.     Leipzig.    Dunckei 

&  Humblot,  1909.     45  p. 

2  Grueber,  Erwin.     Die  vorbildung  der  juristen  11.  ihre  reform.     Leip- 

zig, Scbald,  1910.     19  p. 

3  Gerland.   Heinrieh   B.     Die  reform  des  juristischen  studiums.      Bonn, 

Marcus  &  Weber,  191 1.     160  p. 


20         GUIDE  TO  THE  LAW  OF  GERMANY 

Freund,  now  of  the  University  of  Chicago,  in  an  interesting 
account  in  the  Counsellor,  volume  i  (Jan.,  1892),  pages  131- 
135.  It  is  illustrated  by  the  learned  author's  own  experiences 
while  obtaining  the  doctor's  degree.  Judge  Karl  v.  Lewinski 
gave  to  American  lawyers  an  excellent  account  of  the  prelimi- 
nary education  of  the  German  lawyer,  his  course  of  study  in  the 
law  school,  and  his  practical  work  in  the  courts  before  his  final 
admission  to  the  bar.  The  article,  originally  an  address  before 
the  American  Bar  Association  vProceedings,  1908,  pp.  814- 
827),  may  be  found  in  the  Green  Bag,  volume  20  (1908),  pages 
5 1 6-5  2  3 ,  and  is  reprinted  in  volume  3 1 ,  New  Jersey  Law  Journal 
(1908),  pages  324-331.  Prof.  W.  E.  Walz  in  the  Maine  Law 
Review,  volume  3  (Nov.-Dec,  1909),  pages  1-6,  41-51,  gives 
an  able  account  of  the  practical  features  of  legal  education  in 
Germany.  The  technical  curriculum  of  the  German  law 
school  is  presented  by  Dr.  Gustav  Schirrmeister  in  the  Law 
Magazine  and  Review,  volume  29  (1904),  pages  129-139. 
Prof.  Munroe  Smith's  article  in  the  Columbia  University 
Quarterly  (1902),  pages  138-144  may  also  be  consulted.  In 
one  section  (pp.  153-156)  of  a  recent  article,  "German  courts 
at  work,"  printed  in  the  July,  191 1,  number  of  the  Journal  of 
the  Society  of  Comparative  Legislation,  Julius  Hirschfield 
gives  a  good,  though  summary  account  of  the  education  of 
German  lawyers,  incidentally  drawing  comparisons  with  the 
English  system  of  legal  eduation.  Seminary  methods  of  legal 
education  at  the  University  of  Berlin  were  discussed  briefly 
by  Prof.  E.  G.  Lorenzen  in  an  article  in  volume  1,  pages  388- 
397,  of  the  American  Law  School  Review. 

Attention  must  be  called  to  a  source  of  literature  on  legal 
education  which  is  especially  directed  to  an  outline  of  a  course 
of  study  and  a  program  of  the  necessary  law  school  literature. 
This  is  contained  in  that  section  of  works  on  legal  encyclopedia 
(infra)  which  is  entitled  "  Methodology."  Among  the  modem 
works   Gareis'  Introduction  to  the  science  of  law  (infra),  pages 


LEGAL   ENCYCLOPEDIA  21 

303-329,  may  be  consulted  with  greatest  advantage.  Part  3 
of  Hastie's  Outlines  oj  the  science  of  jurisprudence1  consists 
of  a  translation  from  Dr.  M.  Falck's  Rechtseneyklopddie  (5th 
ed.,  edited  by  Jhering,  1851).  It  is  entitled  "The  scientific 
study  of  jurisprudence,  its  preliminaries,  special  means  and 
appliances."  Part  4  is  a  translation  from  the  appendix  of 
Ahren's  Rechtseneyklopddie  (Wien,  1855).  It  is  entitled 
"  Principles  of  juristic  methodology."  For  the  history  of  legal 
education  in  Germany,  these  chapters  from  Hastie's  work  are 
of  much  interest. 

JURISPRUDENCE 

A. — LEGAL   ENCYCLOPEDIA 

Legal  cncylopedia,  or  juristic  survey,  is  the  term  used  by 
Germans  to  describe  one  particular  class  among  those  works 
which  the  Anglo-American  lawyer  knows  under  the  title 
"General  Jurisprudence."  By  legal  encyclopedia  they  mean, 
to  borrow  Arndts's  definition,  "a  scientific  and  systematic 
outline  or  general  view  of  the  whole  province  of  jurisprudence, 
together  with  the  data  of  that  science;  its  purpose  is  to  deter- 
mine the  compass  and  limits  of  jurisprudence,  its  relations  to 
other  sciences,  its  internal  divisions,  and  the  mutual  rela- 
tions of  its  constituent  parts."  It  is  a  classification  of  the  law 
into  legal  pigeonholes  emphasizing  their  interrelation.  It  is 
the  first  step  in  the  training  of  the  German  law  student;  with 
us,  when  not  omit  ltd  entirely,  it  is  the  last.  Prof.  Munroc 
Smith's  article  in  the  Columbia  University  Quarterly  (1902), 
pages  138-144  is  of  interest  in  this  connection. 

One  of  the  most  important  of  this  class  of  works  has  recently 
been  made  available  to  us  in  an  English  translation  by  A. 
Kocourek.     This  is  Gareis's  Introduction  to  the  science  of  law 

1  Hastie,  W.  Outlines  of  the  science  of  jurisprudence.  An  introduction 
to  the  systematic  study  of  law.  Translated  and  edited  from  the 
juristic  encyclopedias  of  Puchta,  I'rii ■dlander,  1'alck  and  Ahrens. 
Edinburgh,  T.  &  T.  Clark,  1887.     282  p. 


22         GUIDE  TO  THE  LAW  OF  GERMANY 

(Encyklopadie  und  metkodologie  dcr  rechtswissenschaft).1  It 
has  been  incorporated  into  the  Modern  Legal  Philosophy 
Series  as  its  first  volume.  The  importance  of  the  work  to  the 
American  lawyer  can  not  be  overemphasized,  and  as  an  intro- 
duction to  general  jurisprudence  and  particularly  to  German 
law  it  is  of  much  value.  It  is  well  translated.  Two  other 
works  of  this  type  must  be  noticed.  One  is  by  the  well-known 
Adolph  Merkel,2  formerly  professor  at  Strassburg  (4th  ed., 
1909),  and  the  other  by  Arndts,3  the  eleventh  edition  of 
which,  edited  by  Erwin  Grueber,  appeared  in  1908. 

The  more  recent  works  on  legal  encyclopedia,  while  in  part 
preserving  the  abstract  philosophical  background,  nevertheless 
bring  themselves  into  close  relation  with  the  provisions  of  the 
German  Civil  Code  and  modern  law  in  general.  This  was  less 
true  of  the  earlier  works  on  the  subject.  They  retained  their 
philosophic  atmosphere  throughout,  and  except  for  such 
portions  as  dealt  with  the  topics  for  legal  study  or  method- 
ology indulged  in  not  a  little  speculation.  This  is  true  of 
Puchta's  (1798-1846)  Outlines  of  jurisprudence  as  the  science 
of  right,  which  was  translated  into  English  by  W.  Hastie  in 
his  Outlines  of  the  science  of  jurisprudence.  4     Puchta  found 

1  Gareis,  Karl.     Introduction  to  the  science  of  law  .  .  .  tr.  from  the 

3d  rev.  ed.  of  the  German  by  Albert  Kocourek  .  .  .  with  an  intro- 
duction by  Roscoe  Pound.  .  .  .  Boston,  The  Boston  Book  Co.,  191 1. 

375  P- 
Gareis,  Karl.     Encyklopadie  und  methodologie  der  rechtswissenschaft 
(Einleitung  in   die  rechtswissenschaft).      3.   neu   durchgearbeitete 
aufl.     Giessen,  E.  Roth,  1905.     228  p. 
On  the  subject  of  Gareis'  Science  of  law,  see  an  article  by  Arthur  W. 
Spencer,  in  the  April,  191 1,  Green  Bag,  191-196. 

2  Merkel,  Adolf.     Juristische  encyklopadie.     4.  neu  durchgesehene  aufl. 

Hrsg.   von   Dr.    Rudolf  Merkel.  .  .  .  Berlin,    J.  Guttentag,    1909. 

385  P- 

3  Arndts,  R.  von  Arnesberg.     Juristische  encyklopadie  und  methologie. 

nth  ed.  by  E.  Grueber.  Stuttgart  &  Berlin,  J.  G.  Gotta,  1908. 
102  p. 

4  Hastie,  W.     Outlines  of  the  science  of  jurisprudence.     An  introduction 

to  the  systematic  study  of  law.  Translated  and  edited  from  the 
Juristic  encyclopedias  of  Puchta,  Friedlander,  Falck  and  Ahrens. 
Edinburgh,  T.  &  T.  Clark,  1887.     282  p. 


LEGAL   ENCYCLOPEDIA  23 

his  philosophical  elements  in  the  speculation  of  Schelling; 
in  legal  method  and  thought,  he  is  prominently  identified 
with  the  historical  school  of  Savigny.  A  brief  extract  from 
Friedlander's  System  of  jurisprudence  constitutes  part  2  of 
Hastie's  translation.  Friedlander,  when  he  published  his 
Juristic  encyclopedia,  in  1847,  was  a  lecturer  at  the  Univer- 
sity of  Heidelberg.  In  philosophy,  he  was  a  Neo-Hegelian. 
Part  5  of  Hastie's  book  is  likewise  a  translation  from  Fried- 
lander's  Juristic  encyclopedia  and  is  of  historical  importance, 
in  that  it  is  concerned  with  the  history  of  legal  encyclopedia 
as  the  systematic  science  of  jurisprudence.  The  introduction 
(pp.  9-22)  of  Korkunov's  General  theory  of  law  (Hasting's 
translation)  contains  an  interesting  account  of  the  nature, 
history  and  literature  of  legal  encyclopedia. 

A  work  of  much  value  as  a  philosophical  introduction  to 
the  study  of  law  is  the  celebrated  Prof.  Kohler's  Einfiihrung 
in  die  rechtswissenschaft. '  An  article  under  the  same  title 
by  Prof.  Grueber  of  Munich  appears  as  the  first  contribution 
in  Birkmeyer's  Encyklopddie  der  rechtswissenschaft  (infra). 
The  same  author  in  1908  published  an  independent  work  on 
the  subject,  largely  a  reprint  of  his  article. 2  Dr.  Spiegel's 
Beitrdge  zur  kritik  und  methodik  der  rechtswissenschaft 3  also 
merits  our  attention. 

The  term  Encyklopddie  der  Rechtswissenschaft  has  been 
used  to  describe  a  type  of  work  which  has  grown  out  of  the 
more  general  use  of  that  term.  While  still  retaining  its 
character  as  a  survey  of  the  whole  field  of  law,  Holtzdendorff's 

1  Kohler,  Josef.     Einfiihrung  in  die  rechtswissenschaft.     3.     ed.     Leip- 

zig, A.  Deichert,  1908.     312  p. 

2  Grueber,    Erwin.      Einfiihrung    in    die    rechtswissenschaft.      Berlin, 

O.  Hiring,  1908.     174  p. 

3  Spiegel,  Ludwig.     Beitrage  zur  kritik  u.  methodik  der  rechtswissen- 

schaft.    Leipzig,  Duncker  &  Humblot,  1909.     222  p. 


24         GUIDE  TO  THE  LAW  OF  GERMANY 

Encyklopddie  der  rechtswissenschaft '  consists  of  some  twenty 
independent  articles,  by  leading  authorities  in  Germany, 
covering  the  different  branches  of  law.  They  are  divided 
into  four  broad  divisions:  (i)  philosophy  of  law;  (2)  civil 
law,  including  commercial  law  and  procedure;  (3)  criminal 
law;  (4)  public  law.  The  sixth  edition  of  this  well-known 
work,  edited  by  Prof.  Kohler,  was  published  in  1904.  The 
fifth  edition,  published  in  1890,  contains  articles  by  con- 
tributors in  part  other  than  those  found  in  the  sixth  edition, 
and  has  therefore  some  independent  value.  Another  notable 
work  of  the  type  of  Holtzdendorff  is  that  edited  by  Dr.  Karl 
Birkmeyer  of  Munich,2  the  leader  of  the  classical  school  in 
criminal  law.  It  consists  of  fourteen  articles  by  leading 
authorities  on  different  branches  of  law. 

An  important  collection  of  monographs  by  the  leading 
publicists  of  Germany  appears  as  one  of  the  volumes  in  the 
Kultur  der  gegavwart  under  the  title  Syslematischc  rechts- 
wissenschaft. 3  The  second  part  of  Holtzendorff's  Encyklo 
padie  was  formerly  called  Rechtslexikon,  and  presented  in 
alphabetical  arrangement  a  synopsis  of  German  law.  For 
this  purpose  it  is  now  largely  antiquated,  but  its  bibliogra- 
phies are  still  useful.     The  last  edition  appeared  in  1875. 

B. — PHILOSOPHY  OF  LAW 

Works  on  the  philosophy  of  law  (Rechts philosophic)  take  up 
the  philosophical  foundations  of  the  legal  order,  legal  systems, 
institutions  and  doctrines,  and  the  philosophical  and  ethical 

1  Holtzendorff,  Franz  von.     Encyklopadie  der  rechtswissenschaft.     6th 

ed.  by  Josef  Kohler.  Berlin,  Duncker  &  Humblot,  1904.  2  v.  See 
the  extensive  article  by  Prof.  Erwin  Grueber  (Law  Quarterly  Re- 
view, vol.  1,  1885.  pp.  62-79)  in  which  the  contents  of  the  fourth 
edition  of  this  work  are  discussed. 

2  Birkmeyer,     Karl.      Encyklopadie    der    rechtswissenschaft.      Berlin, 

O.  Haring,  1904.     1516  p. 

3  Systematische     rechtswissenschaft     von     Stammler,     Sohm,    Gareis, 

Ehrenberg,  Bar,  Seuffert,  Liszt,  Laband,  Anschiitz.  Part  of  Die 
Kultur  der  gegenwart,  Edited  by  P.  Hinneberg.  Part  II,  Section 
VIII.     Leipzig,  Tcubner,  1906. 


PHILOSOPHY    OF    LAW  25 

bases  of  particular  branches  of  the  law.  Works  on  the  general 
theory  of  law  (Allgemeine  Rechtslehre)  treat  of  general  con- 
ceptions of  law  or  of  a  legal  system.  The  division  between  the 
works  on  Rechtsphilosophie  and  Rechtslehre  is  often  vague. 

A  class  of  work  which  also  presents  a  scientific  analysis  of 
fundamental  legal  conceptions  is  the  Introductory  or  General 
Part  of  works  on  Pandektenrecht  or  modern  Roman  law. 
These  works  take  up  the  details  of  a  complete  legal  system 
and  will  be  discussed  later. 

Jurists  have  been  arranged  in  schools  or  groups  according 
to  their  methods,  or  according  to  their  fundamental  concep- 
tions of  law,  in  its  origin,  nature  or  purpose.  Classifications, 
however,  are  by  no  means  rigid,  and  the  lines  between  the 
schools  are  often  very  indistinct. 

Jurists,  moreover,  are  frequently  identified  with  certain 
leaders  in  juristic  thought  whose  doctrines  they  tend  to  follow 
or  approach.  The  theories  of  these  early  leaders  have  now 
been  largely  abandoned,  but  to  adopt  Sheldon  Amos'  charac- 
terization, they  have  "stamped  their  personality,  their  nom- 
enclature, their  ethical  tone,  and  their  methods  of  philo- 
sophical analysis  so  ineffaceably  upon  the  science  of  jurispru- 
dence", that  a  survey  of  German  legal  philosophy  can  not 
omit  these  master  works. 

Method  is  an  essential  characteristic  of  every  science. 
Methods  applied  to  legal  science  have  gained  recognition  as 
they  have  proved  of  practical  utility  in  producing  a  symmet- 
rical system  of  law  suitable  to  the  needs  of  the  people  whose 
social  relations  it  has  to  regulate.  The  four  methods  princi- 
pally employed  in  legal  science  have  been  the  metaphysical, 
or  a  priori,  the  historical,  the  analytical,  and  the  comparative, 
each  of  which  has  had  illustrious  representatives. 

The  metaphysical  method,  adopted  by  what  was  probably 
the  largest  class  of  the  philosophical  jurisls,  investigates  the 
abstract  ideas  of  right  and  law  in  their  relation  to  morality, 


26         GUIDE  TO  THE  LAW  OF  GERMANY 

freedom,  and  the  human  will.  Law  becomes  the  expression 
of  an  idea.  In  the  hands  of  certain  of  its  exponents,  this 
method  gave  new  life  to  the  school  of  natural  law  which 
regarded  divine  law  as  superior  to  human  law,  the  law  of  man 
being  simply  a  part  of  a  larger  scheme  of  the  universe.  In  the 
hands  of  others,  it  helped  to  supplant  the  law-of-nature  school. 

The  reaction  against  this  latter  school  by  the  historical 
school  helped  to  produce  a  new  theory  of  law.  The  historical 
jurist  sees  in  law  a  product  of  time  and  unconscious  evolution; 
a  rule  of  human  action  becomes  the  result  of  human  experience. 
The  reaction  against  the  divine  authority  of  law  in  favor  of  a 
constituted  authority  produced  what  has  been  called  the  posi- 
tive school  of  thought,  represented  by  Hobbes  in  England  in 
political  philosophy,  and  by  Thibaut  in  Germany  as  a  practical 
dogmatist  in  law.  The  opposition  in  England  of  the  historical 
to  the  positive  school  finds  a  counterpart  in  Germany  in  the 
controversy  between  Savigny  and  Thibaut,  to  which  conflict 
we  shall  recur  later. 

The  analytical  method  starts  from  the  concrete,  from  actu- 
ally existing  legal  data,  defines  the  terms,  classifies  them,  and 
explains  their  connotation  and  interrelation.  The  analytical 
school,  essentially  of  English  origin,  first  became  important  in 
Germany  with  Binding's  Die  Normen  und  ihre  iibertrclung 
(1872).1  It  considers  law  as  the  product  of  a  conscious  or  deter- 
minate human  will.  The  modern  development  of  this  method 
and  its  application  to  current  social  problems  is  identified  with 
the  name  of  Jhering.  Jhering  represents  a  reaction  against 
the  historical  school  of  Savigny.  While  continuing  to  regard 
law  as  a  historical  phenomenon,  Jhering  denies  that  it  is  an 
unconscious  growth;  on  the  contrary,  he  asserts  that  it  is 
and  always  has  been  made,  and  that  means  of  serving  human 
ends  are  discovered  and  fashioned  consciously  into  laws.     He 

1  Binding,  Karl.     Die  normen  und  ihre  iibertretung.     Leipzig,  Engel- 
mann,  1872-77.     2  v.    v.  1,  2nd  ed.,  1890. 


PHILOSOPHY   OF    LAW  27 

5  with  the  English  analytic  school  in  emphasizing  the 
possibility  of  enforcement  as  an  essential  characteristic  of  law. 

The  comparative  method  is  concerned  with  space,  as  the 
historical  is  with  time.  It  collects  and  examines  the  doctrines, 
rules,  and  notions  which  are  found  in  every  developed  legal 
system,  notes  their  agreements  and  differences,  and  thereby 
seeks  to  construct  a  system  of  law.  While  this  method  has 
produced  no  distinct  theory  of  law,  it  has  come  into  promi- 
nence through  the  works  of  Dahn,  Post,  and  Kohler,  in  which 
comparative  ethnology  and  anthropology  are  considered  as 
important  bases  of  jurisprudence. 

The  leading  representative  of  t he  metaphysical  group  was 
the  great  philosopher  Kant  (1724-1804).  With  Kant,  juris- 
prudence for  the  first  time  fell  into  the  hands  of  the  meta- 
physicians, and  this  union  of  law  and  metaphysics  character- 
ized  a  considerable  portion  of  the  German  legal  philosophy 
of  the  early  nineteenth  century.  Kant's  philosophy  of  law 
is  contained  in  his  work  Die  metaphysik  do-  ritten,'  published 
in  1797  as  the  first  part  of  his  Mi  taphysic  oj  morals,  the  sequel 
and  completion  of  his  Foundation  jor  a  metaphysic  oj  morals} 
We  possess  an  English  translation  of  the  work  by  W.  Hastie.3 

The  important  legal  philosophers  of  the  early  nineteenth 
century  who  have  themselves  become  leaders  of  juristic, 
thought — Fichte,  Schelling,  Hegel,  Krause — made  the  Kantian 
philosophy  the  starting  point  of  their  individual  efforts. 

1  Kant,  I.     Die    metaphysik   der   sitten.     Erster   teil.     Metaphysische 

anfangsgmnde  der  rechtslehre.    Konigsberg,  171)7. 

2  Kant,  I.     Grundlegung   zur   metaphysik   der   sitten.     Translated    by 

Willich  (1798),  Semple  (1836)  and  Abbott  (185 

3  Hastie,  \V.     Kant's  philosophy  of  law .     An  exposition  of  the  fundamen- 

tal principles  of  jurisprudence  as  the  science  of  right,  by  Immanuel 
Kant.  Translated  from  the  German  by  W.  Hastie.  Edinburgh, 
T.  &  T.  Clark,  1887.     265  p. 


28         GUIDE  TO  THE  LAW  OF  GERMANY 

Fichte's  (1762-1814)  most  prominent  work  is  his  Grundlage 
des  naiurrechts.1  The  work  was  translated  into  English  in 
1869.2  Schelling  (1 775-1 854)  is  perhaps  best  known  through 
his  disciple  Stahl  (1802-1861),  generally  considered  the 
leading  representative  of  the  theological  school  in  legal 
philosophy.3 

Hegel's  (1770-1831)  great  work  is  his  Grundlinien  der 
philosophic  des  rechts,  which  has  been  translated  into  English 
by  Prof.  Dyde.4  The  work  first  appeared  in  1821,  and  in 
1833  was  edited  by  Gans  (2d  ed.,  1840).  In  1902  an  edition 
by  Bolland  was  published  in  Leyden.  The  well-known  editor 
of  the  Encyklopddie  u.  der  phanomenologie ,  George  Lasson,  has 
recently  brought  out  a  new  edition,5  in  which  he  has  carefully 
edited  the  text  and  supplied  a  valuable  introduction  and 
copious  notes.  Prof.  Kohler,  the  most  prominent  Neo-Hege- 
lian,  took  occasion,  on  the  appearance  of  this  work,  to  write 
an  article  on  Hegel's  legal  philosophy.  It  may  be  found  in 
the  October,  1911,  number  of  the  Archiv  fitr  rechts-  und  wirt- 
schajtsphilosophie,  pages  104-114.  The  Hegelian  philosophy 
considers  law  the  expression  of  the  culture  of  a  people  in  the 
form  of  principles  for  the  government  of  men's  external  rela- 
tions to  one  another.  To  quote  Korkunov,  Hegel's  disciples 
have  sought  to  present  the  development  of  different  systems 
of  positive  law  as  a  dialectic  development  of  the  general  idea 

1  Fichte,  J.  G.  Grundlage  des  naturrechts  nach  principien  der  wissen- 
sehaftslehre.  Jena  und  Leipzig,  C.  E.  Gabler,  1796-97.  2nd  ed.  2  v. 
in  1. 

'-'  Fichte,  J.  C.  The  science  of  rights.  Translated  from  the  German  by 
A.  E.  Kroeger.     Philadelphia,  Lippincott,  1869.     505  p. 

3  Stahl,  F.J.    Die  philosophic  des  rechts.    3  V.    4thed.    Heidelberg,  1870, 

v.  1  (History)  translated  into  French  by  Chauffard  (Paris,  1870). 

4  Hegel,  G.   W.   F.     Philosophic  des   rechts.     Translated   by  Professor 

Dyde  as  "Philosophy  of  right."     London,  Bell,  1896. 

5  Hegel,  G.  W.   F.     Grundlinien  der  philosophic  des  rechts.     Mit  der 

von  Gans  redigierten  zusatzen  aus   Hegel's  vorlesungen  neu  hrsg. 
von  Georg  Lasson.     Leipzig,  F.  Meiner,  1911.     380  p. 


PHILOSOPHY    OF    LAW  29 

of  liberty.  An  outline  in  English  of  Hegel's  legal  philosophy 
is  given  in  Dr.  James  Hutchison  Stirling's  Lecturet  on  ilu  phi- 
losophy of  lau\l  The  lectures  of  W.  G.  Miller  delivered  at  the 
University  of  Glasgow,  adopt  in  general  the  Hegelian  stand- 
point.3 

Krause  (1781-1832)  is  now  recognized  as  the  definite 
founder  of  the  organic  and  positive  school  of  natural  law,  and 
brings  to  its  fullest  effect  the  philosophy  of  Kant.  His  two 
most  prominent  works  are  his  Grundlage  des  naturrechts,3  and 
his  Abriss  des  systems  der  rechts philosophic.*  The  leading 
representative  of  the  Krause  school  was  the  celebrated  Ahrens 
(1808-1874),  whose  Cours  de  droit  natun  I  '  has  an  international 
reputation.  The  only  English  work  which  displays  sympathy 
for  the  principles  of  Krause  and  his  school  of  natural  right  is 
Prof.  Lorimcr's  Institutes  of  law."  Pollock  in  his  Essays  in 
jurisprudence  and  ethics,  page  19  et  seq.,  gives  considerable 
space  to  Lorimer's  work  and  the  theory. 

The  various  schools  of  juristic  thought  have  been  in  frequent 
opposition,  and  the  history  of  legal  development  in  Germany 
is  closely  identified  with  their  controversies.  The  nineteenth 
century  opened  with  the  reaction  by  the  historical  school, 
resurrected  and  rehabilitated  by  Hugo  (1 764-1 844),  against 
the  school  of  natural  law.  The  first  effective  challenge  of  this 
revived  school  was  extended  by  Savigny,  its  most  illustrious 

1  Stirling,   James    Hutchison.     Lectures    on    the    philosophy    of    law. 

London,  1873.     139  p. 
-  Miller,   VV.  G.      Lectures   on    the    philosophy  of    law.     London,   C. 

Griffin,  1884.     432  p. 

3  Krause,   C.   Chr.     Grundlage    des    naturrechts    oder    philosophischer 

grundriss  des  ideals  des  rechts.     v.  1,  1803. 

4  Krause,  C.  Chr.     Abriss   des  systems  der   rechtsphilosophie   oder   des 

naturrechts,  1825.    (System  der  rechtsphilosophie,  Leipzig,  1873.) 
1  Ahrens,  Hcinrich.     Cours  de  droit  nature  1  oil  de  philosophic  du  droit 
8th  ed.     Leipzig,  Brockhaus,  1892,  2  v.     6th  (German)  ed.  Vienna, 
1870.     English  translation,  Boston,  1880  (Miller's  bibliography). 
0  Lorimer,  J.     Institutes  of  law.     A  treatise  of  the  principles  of  juris- 
prudence as  determined  by  nature.     2d  cd.   Edinburgh,  1880. 


30         GUIDE  TO  THE  LAW  OF  GERMANY 

representative,  in  his  intellectual  contest  with  the  practical 
dogmatic  school  of  Thibaut.  Savigny  also  opposed  his  his- 
torical method  to  the  abstract  metaphysical  speculations  of 
the  contemporary  Hegelians.  After  the  controversies  of 
Thibaut  and  Savigny  on  the  possibility  and  utility  of  codifi- 
cation had  been  forgotten  in  the  great  constructive  work  of 
codification  and  law  reform  which  began  with  the  Bills  of  Ex- 
change Act  (Wechselordwung)  of  1849,  and  which  was  continued 
in  the  Commercial  Code  of  1861  and  later  in  the  Imperial 
statutes  of  1877,  the  arena  was  cleared  for  the  struggle  between 
the  Germanists  and  the  Romanists.  While  not  strictly  a 
conflict  between  philosophical  conceptions  of  jurisprudence, 
the  contest  may  nevertheless  be  considered  an  effort  of  the 
then  newly  arising  analytical  school,  by  its  critical  methods, 
to  overthrow  the  dominant  Romanism  in  German  law.  These 
controversies  having  now  largely  subsided  with  the  enactment 
of  the  Civil  Code,  the  social  conditions  of  the  present  day  have 
given  rise  to  a  new  school  which  Roscoe  Pound  calls  a  socio- 
philosophical  or  sociological  school.  This  sociological  school 
of  juristic  thought  combines  within  it  the  methods  of  the 
historical,  analytical,  and  revived  philosophical  schools. 

The  substance  of  the  struggle  between  the  historical  and 
dogmatic  non-historical  schools,  whose  champions  at  the  height 
of  the  controversy  were  Savigny  and  Thibaut,  is  exemplified 
by  two  small  works,  the  one  by  Savigny  (1 779-1 860),  his  cele- 
brated Of  the  vocation  of  our  age  for  legislation  and  jurispru- 
dence, first  written  in  1814  (English  translation  by  Abraham 
Hayward  from  the  second,  1828,  edition,  London,  Little- 
wood,  1831),  and  the  other  by  Thibaut,  a  pamphlet  called 
Uber  die  notwendigkeit  eincs  allgemeincn  biirgcrlichcn  rechts 
fiir  Deutschland,  published  in  18 14  with  some  other  doctrinary 
monographs.  Both  works  were  due  to  a  revival  of  German 
patriotism,  caused  by  the  Napoleonic  wars.  Thibaut  urged 
his  countrymen  to  promote  German  unity  by  codifying  and 


PHILOSOPHY   OF   LAW  3 1 

unifying  their  laws.  Savigny  warned  them  against  hastily 
and  inconsiderately  following  French  models.  A  short 
critique  of  the  German  historical  school  is  presented  in  Kor 
kunov's  General  theory  0}  law  (Hasting's  translation),  pages 
1 18-122.  In  section  19,  pages  143-156  of  that  book  the 
doctrines  of  Hugo,  Savigny  and  Puchta,  the  most  typical 
representatives  of  the  historical  school,  are  set  forth.  The 
political  and  legal  conditions  upon  which  Thibaut  based  his 
advocacy  of  codification  are  also  well  stated.  A  list  of  the 
works  of  Hugo,  the  father  of  the  historical  school,  are  to  be 
found  in  the  American  Jurist,  volume  14  (1835),  page  48,  and 
those  of  his  great  disciple,  Haubold,  in  the  footnote  on  page  49 
of  the  same  volume.  A  valuable  study  of  the  life  and  in- 
fluence of  Savigny  was  written  for  the  Journal  of  the  Society 
of  Comparative  Legislation,  vol.  11  (November,  1910),  pages 
32-54,  by  J.  E.  G.  DeMontmorency,  this  being  one  of  a  series 
entitled  "The  great  jurists  of  the  world."  Dr.  \Y.  Guthrie's 
excellent  translation  of  the  eighth  volume  of  Savigny's  System 
des  heutigen  romischen  reckts1  is  introduced  by  an  admirable 
account  of  Savigny  and  his  standpoint.  This  introduction 
also  contains  (p.  13)  in  Savigny's  own  words,  a  refutation  of 
the  charge  made  against  the  historical  school,  that  its  disciples 
sought  to  impose  Roman  law  upon  modern  conditions  in 
Germany. 

In  the  latter  part  of  the  nineteenth  century  strict  philosophj 
of  law  fell  into  disrepute  because  of  its  mistaken  identification 
with  the  metaphysical  speculations  of  Kant  and  Hegel. 
Nevertheless  such  works  as  Lasson's  System  der  rechtsphiloso- 
phie  (Berlin,  1882),  and  the  works  of  Kohler  indicate  a  distinct 
revival  of  the  I  Iegelian  school.  Stammler,  t  he  most  prominent 
Neo-Kantian  of  modern  times,  also  shows  the  influence  of  the 

1  Savigny,  F.  Carl  von.  A  treatise  on  the  conflict  of  laws.  Translated, 
with  notes,  by  William  Guthrie,  2d  ed.  Edinburgh,  T.  &  T.  Clark, 
1880.     567  p. 


32         GUIDE  TO  THE  LAW  OK  GERMANY 

general  philosophical  awakening  at  the  end  of  the  nineteenth 
century.  Jhering,  Kohler  and  Stammler  are  the  leaders  of 
the  modern  sociological-philosophical  school. 

The  differences  between  the  various  schools  have  called 
forth  a  number  of  excellent  articles  in  English  and  American 
periodicals  to  which  it  seems  fitting  to  direct  attention.  By 
all  means  the  most  important  of  these  are  the  two  articles 
published  by  Roscoe  Pound  on  the  "scope  and  purpose  of 
sociological  jurisprudence,"  which  appeared  in  the  June  and 
December,  191 1,  numbers  of  the  Harvard  Law  Review 
(Vol.  24,  pp.  591-619;  vol.  25,  pp.  140-168).  It  is  a  brilliant 
account  of  the  origin,  principles,  development,  and  inter- 
relation of  the  various  schools  of  juristic  thought.  The 
second  of  the  articles  devotes  considerable  space  to  the 
doctrines  and  influence  of  the  greatest  of  the  social  utilita- 
rians, Jhering,  and  the  leader  of  the  modern  Neo-Kantians, 
Stammler,  to  whose  notable  work  we  shall  refer  below. 
Prof.  Pound's  forthcoming  book  Sociological  jurisprudence,  of 
which  these  articles  are  the  substance,  will  unquestionably 
command  widespread  attention. 

The  different  schools  of  jurisprudence,  with  emphasis  on 
the  sociological,  were  described  by  Prof.  Pound  in  his  paper 
"A  new  school  of  jurists,"  published  in  the  University  Studies 
of  the  University  of  Nebraska,  Lincoln,  Nebr.  (Vol.  4,  July, 
1904,  pp.  249—266).  Gareis's  Science  oj  law,  Introduction, 
page  12,  presents  a  succinct  outline  of  the  various  schools. 
The  twelfth  essay  in  Bryce's  Studies  in  history  and  juris- 
prudence (Oxford,  1 901),  volume  2,  pages  172-208,  while  not 
confined  to  Germany,  discusses  the  principal  methods  of  legal 
science,  their  application  to  the  philosophy  of  law,  and  their 
theoretical  and  practical  utility.  The  concluding  pages  of 
Munroe  Smith's   brilliant    essay  on   Jurisprudence1  take    up 

1  Smith,  Munroe.   Jurisprudence.    New  York,  Columbia  University  Press, 
1908.     42  p. 


PHILOSOPHY    OK    I.  AW  33 

the  principal  schools  of  juristic  thought,  their  theories,  and 
their  methods. 

An  article  by  Prof.  Pound  published  in  volume  i  of  the 
Innual  Bulletin  of  the  Comparative  Law  Bureau  presents  the 
attitude  of  the  three  principal  schools,  the  analytic,  the  his- 
torical, and  the  modern  sociological-philosophical  school 
toward  a  certain  phase  of  the  contemporary  movement  for 
the  reform  of  legal  procedure  in  Germany — the  function  of 
the  judge  in  the  application  of  law  (Recktsanwendung).  Dr. 
M.  Rumpf  in  a  small  work  entitled  Gesetz  und  richter1  has 
made  a  valuable  contribution  to  this  much  debated  question 
of  the  proper  function  of  the  judge  in  applying  the  law,  and 
the  relation  between  legislation  and  judicial  decision.  The 
work  has  recently  been  translated  into  French.  A  book  on 
the  same  subject  by  Briitt  '  has  attracted  some  attention. 

In  an  article  entitled  "German  historical  school  of  juris- 
prudence," published  in  the  American  Jurist ,  volume  14  (  1835), 
pages  43-62,  there  appears  a  translation  of  the  seventeenth 
chapter  of  Lerminier's  great  work  Introduction  g&nSrale  ii  /' 
histoire  </»  droit  (2d  ed.,  Paris,  1835).  The  article  contains 
a  learned  discussion  of  the  conflicting  theories  of  Savigny  and 
Thibaut,  as  portrayed  in  their  works.  In  a  similar  article 
comparative  of  these  two  schools,  under  the  title  "Schools  of 
German  jurists"  (Monthly  Law  Magazine,  vol.  6,  1839,  pp. 
77-98),  the  two  great  schools  of  Roman  lawyers  and  their 
principal  disciples  are  discussed,  followed  by  a  comparison  of 
the  respective  schools  of  Savigny  and  Thibaut.  A.  II.  Lefroy, 
in  an  article  entitled  "Jurisprudence,"  which  appeared  in  the 
Law  Quarterly  Review,  191  1,  pages  180-186  distinguishes  the 
English  from  the  German  historical  school  of  jurisprudence, 
explaining  that  the  former  is  scientific  in  origin  and  deals  with 


1  Rumpf.  M     Gesetz  tt.  richter.     Berlin,  Liebmann,  1906.    199  p 

-'  Brim.  I.      Die  kunst  der  rechtaanwendnng,     Berlin,  J.  Guttentag, 

100;.     214  p. 

29774°— 12— 3 


34         GUIDE  TO  THE  LAW  OF  GERMANY 

the  growth  of  juridical  ideas  within  the  legal  system,  whereas 
the  latter  is  political  in  origin  and  deals  with  the  development 
of  legal  systems  as  a  whole.  His  opinions  are  based  on 
Pollock,  Vinogradoff,  and  Maine.  In  an  article  by  Prof. 
Ernst  Freund,  published  in  the  Political  Science  Quarterly, 
volume  5  (1890),  pages  468-486  under  the  title  "Historical 
jurisprudence  in  Germany"  there  is  a  critical  discussion  of 
the  spirit  and  work  of  the  historical  school  of  jurists  in  their 
struggle  with  the  philosophical  and  the  practical  dogmatic 
schools.  Prof.  Rudolf  Leonhard,  Kaiser  Wilhelm  exchange 
professor  at  Columbia  University,  1907-8,  in  an  introductory 
address  on  the  "Methods  followed  in  Germany  by  the  his- 
torical school  of  law  "  (published  in  the  Columbia  Law  Review, 
vol.  7,  1907,  pp.  573-581)  examines  with  friendly  criticism 
the  methods  of  the  historical  school  and  lays  emphasis  on  its 
achievements. 

A  useful  bibliography  of  the  philosophy  of  law,  divided  by 
schools  and  periods,  is  printed  as  Appendix  E  (pp.  408-424) 
of  \V.  G.  Miller's  Lectures  on  the  philosophy  of  law  (London, 
Griffin,  1884).  Prof.  Salmond's  well-known  work  on  Juris- 
prudence (London,  Stevens  &  Haynes,  1907,  2d  ed.)  contains, 
in  Appendix  V,  a  carefully  selected  bibliography. 

The  social  conditions  at  the  end  of  the  nineteenth  century 
and  the  demands  of  society  for  the  effective  administration 
of  justice  in  the  existing  complex  industrial  organization 
helped  to  create  a  new  group  of  jurists,  the  social  utilitarians, 
who  gave  a  new  direction  to  philosophy  of  law,  turning  from 
its  nature  to  its  purpose.  Rudolf  Jhering  (181 8-1 892),  the 
great  Romanist,  is  the  leader  of  this  group,  of  which  Berolz- 
heimer  and  Sternberg  are  prominent  representatives.  Jhering's 
views  have  exercised  a  permanent  influence  on  the  whole  trend 
of  modern  juristic  thought  and  conceptions  of  law,  and  jurists 
generally  will  agree  with  Roscoe  Pound  that  his  work  is  quite  as 
epoch-making  as  that  of  Savigny .   Jhering,  analytically  inclined, 


PHILOSOPHY    OF    LAW  35 

represents  a  violent  reaction  against  the  historical  school. 
Instead  of  considering  law  the  result  of  unconscious  growth, 
like  language,  Jhcring  by  his  teleological  method  succeeded  in 
showing  that  it  is  fashioned  to  meet  human  ends  consciously. 
His  is  a  jurisprudence  in  which  legal  precepts  are  created  and 
tested  by  their  results  and  practical  application.  Jhering 
was  the  pioneer  in  doing  for  Germany  what  is  now  most 
urgently  needed  in  America:  he  substituted  a  jurisprudence 
of  results  (Wir klichheUs juris prudettz)  for  a  jurisprudence  of 
conceptions  (Begrijfsjurisprudenz).  He  was  the  first  to 
advance  what  is  now  the  generally  accepted  theory  that  law 
is  the  means  by  which  society  recognizes  and  protects  indi- 
vidual interests.  It  is  not  invoked  by  the  individual  against 
society,  but  is  created  by  society  to  secure  those  individual 
interests  which  it  recognizes.  This  social  theory  of  law,  and 
its  practical  effect  in  the  interpretation  of  modern  legislation 
has  just  begun  its  development,  A  discussion  of  the  relation 
between  the  utilitarian  school  and  those  it  has  superseded 
may  be  found  in  ECorkunov's  G  neral  th,  ory  of  law,  pp.  104-1 15. 
Prof.  Munroe  Smith  in  a  series  of  articles  appearing  in  the 
Political  Science  Quarterly,1  under  the  title  "Four  German 
jurists,"  brims,  Windscheid,  von  Jhering,  and  Gneist,  under- 
takes a  critical  study  of  the  works  and  philosophy  of  these 
scholars  and  of  their  influence  on  the  development  of  law. 
A  list  of  their  principal  publications  appears  in  volume  10 
(1895)  of  the  Quarterly,  pages  664-665.  Two  other  impor- 
tant articles  in  English  on  the  teachings  of  Jhering  have 
appeared  in  periodicals.  Prof.  William  Markby,  in  the  Law 
Magazine  and  Review,  fourth  se-ries,  volume  3  (1N7S),  pages 
389-412,  under  the  title  "German  jurists  and  Roman  law," 
discussed  Jhering's  legal  theories,  particularly  as  he  expounds 
tluin  in  his  Geist  des romischen  rechts  (Leipzig,  1873,  6th  ed., 

'  Political  Science  Quarterly,    v.  10(1895),  I'l'   '''m  '"'-'•  v-  "  (•896), 
pp.  .'78-309;  v.  12(1897),  pp.  2]  <•-•;  v.  16  (1901),  pp.  641-679. 


36         GUIDE  TO  THE  LAW  OF  GERMANY 

1881-1907,  3  volumes).  In  the  same  article  he  discussed  to 
some  extent  Jhering's  forceful  little  work,  Der  kampf  urns 
recht  (17th  ed.,  Wien,  Manz,  1910),  which  has  been  translated 
into  almost  every  modern  language  and  appears  in  a  rather 
poor  English  translation,  from  the  fifth  German  edition,  by 
John  J.  Lalor  (Chicago,  Callaghan  &  Co.,  1879).  This  last- 
mentioned  work  is  also  discussed  in  an  article  by  Judge  U.  M. 
Rose,  published  in  the  Southern  Law  Review,  new  series, 
volume  2  (1876),  pages  551-575,  under  the  title  "Controversies 
of  modern  continental  jurists."  The  article  contains  an 
exposition  of  the  general  legal  philosophy  and  doctrines  of 
Jhering. 

Jhering's  leading  work,  with  which  his  juristic  thought  is 
usually  identified,  is  his  Der  zweck  im  recht  (Teleology  of  law).1 
This  work  is  shortly  to  be  translated  under  the  title  Law  as  a 
means  to  an  end  by  Isaac  Husik,  of  the  University  of  Penn- 
sylvania, as  one  of  the  Modern  Legal  Philosophy  Series  under 
the  general  editorship  of  a  committee  of  the  Association  of 
American  Law  Schools.  The  theories  presented  in  this  work 
constitute  the  basis  for  the  discussion  of  Jhering  in  Pound's 
recent  article  and  occupy  a  prominent  place  in  Munroe  Smith's 
article  on  "Four  German  jurists"  (supra).  Chapter  XII 
(pp.  262-310)  of  Lightwood's  Nature  of  positive  law  (London, 
Macmillan,  1883)  is  entitled  "Modern  German  schools  of 
jurisprudence."  It  consists  largely  of  a  portrayal  of  Jhering's 
conceptions  of  law  as  opposed  to  those  of  Savigny  and  Puchta. 

Berolzheimer,  while  a  Neo-Hegelian,  may  be  identified 
with  the  juristic  conceptions  of  Jhering.  His  most  prominent 
contributions  to  literature  are  his  five  volumes  on  legal  and 
social   philosophy.2     Part  of  this   work,   Die  kulturstu/e  der 

1  Jhering,  Rudolf.     Der  zweek  in  reeht.     (1st  ed.  1877-1883).     4th  ed. 

Leipzig,  Breitkopf  &  Hartel,  1904-1905.     2  v. 

2  Berolzheimer,    Fritz.      System    der  rechts   u.  wirtsehaftsphilosophie. 

Miinchen,  C.  H.  Beck,  1904-1907.     5  v. 


PHILOSOPHY    OP    LAW  37 

rechts  it.  wirischaftsphilosophie,  is  to  be  translated  by  Mrs. 
Joseph  Jastrow  as  Volume  II  of  the  Modem  Legal  Philosophy 
Series.  This  is  to  offer  a  comprehensive  survey  of  the  works 
of  all  the  philosophers,  from  the  beginning  to  the  present 
time,  in  their  treatment  of  legal  theory.  Berolzheimer's 
RechtsphUosophischc  sludicn  l  assured  him  a  prominent  place 
among  present  day  scholars. 

Jhering  has  exercised  a  strong  influence  on  writers  on  the 
general  theory  of  law,  particularly  as  to  the  essential  char- 
acter of  enforcement.  Theodor  Sternberg's  Allgemeine 
rechtslehn  •  is  among  the  more  important  of  the  recent  works 
cm  jurisprudence.  Although  a  Russian  work,  we  can  not  over- 
look Korktmnv's  General  theory  of  law?  which  has  been  made 
available  to  Anglo-American  lawyers  by  the  excellent  trans- 
lation of  Prof.  Hastings.  In  its  thorough  grasp  of  legal  con- 
cepts and  its  critical  acumen,  it  is  of  primary  importance  in 
the  study  of  German  juristic  thought.  The  work  has  been 
incorporated  in  the  Modern  Legal  Philosophy  Series,  as 
Volume  IV. 

Attention  may  be  called  to  a  recent  work  on  the  general 
theory  of  law  by  August  Sturm.  He  calls  it  the  "psychologi- 
cal basis  of  law."*     Its  value  is  still  uncertain. 

The  practical  need  for  a  new  philosophical  jurisprudence 
brought  to  the  front  a  jurist  whose  work  has  made  him 
prominent  among  modern  scholars.  This  is  Prof.  Rudolf 
Stammler,  of  Halle,  a  Xen  Kantian.  He  represents  a  reaction 
against  the  historical  school  in  his  return  to  the  philosophical 

1  Berolzhcinur,  I'ritz.     Rcchtsphilosophisclic  studien.     Munchen,  C.  H. 

Beck,  1903.     167  p. 
1  Sternberg,  Theodor.     Allgemeine  rechtslehre.     Leipzig,  Goschcn.  1904. 

2  v. 
1  Korkunov,  N.  M.     General  theory  of  law.     English  translation  b)  W.  G 

Hastings.     Boston,  Boston  Bo  >k  <-■>  ,  mai.     524  p. 
4  Sturm.  August.      Die-  psychologiselu  grundlage  ilcs  rechts.      Kin  ln-itrag 

rar  allgemeinen  rechtslehre.     Hannover,  Helwing,  1910.    531  p. 


38         GUIDE  TO  THE  LAW  OF  GERMANY 

method.  His  theory  of  the  social  in  place  of  the  old  indi- 
vidualistic ideal  as  a  criterion  of  justice  is  in  reality  a  legal 
theory  of  social  justice  which  meets  the  social  problems  of  the 
century  and  interprets  the  social  will.  To  quote  Prof.  Pound, 
the  whole  science  of  jurisprudence  has  received  a  new  stand- 
point. Kantorovicz,  cited  by  Pound,  states  that  it  is  Stamm- 
ler's  endeavor  to  find  a  method  of  "determining  and  directing 
the  application  of  legal  rules  so  that  they  shall  have  the 
quality  of  being  objectively  just."  He  reaches  justice 
"through  law"  instead  of  "according  to  law." 

All  three  of  Stammler's  leading  works  are  of  the  utmost 
importance.  For  his  philosophy  of  law  his  Lehrc  von  d*  m 
richtigen  rechie '  is  the  most  prominent.  Under  the  title 
77a-  theory  of  justice  this  work  is  to  be  translated  into 
English  in  the  Modern  Legal  Philosophy  Series.  His  work 
Wirtsehaft  und  recht a  is  likewise  an  attempt  to  reach  a  theory 
of  law  and  justice  which  shall  fit  current  social  problems. 
Stammler's  latest  work  Tkeorie  </<r  rechtswissenschaft3  in- 
cludes a  complete  system  of  his  theory  of  jurisprudence. 
He  deals  with  the  concept,  the  validity,  the  categories,  the 
method,  the  ideal,  the  technique,  the  practice  and  finally  with 
the  history  of  law.  The  book  has  appeared  too  recently  to 
receive  the  discriminating  evaluation  that  it  deserves. 

The  Neo-Hegelians,  whose  most  prominent  disciple  is  their 
leader  Josef  Kohler,  have  preserved  and  developed  the  his- 
torical method.  They  have  sought  to  relate  this  method  to 
the  philosophy  of  law,  to  anthropology,  to  ethnology,  and  to 
economics.  Kohler's  most  important  contribution  to  the 
philosophy  of  law  is  his  theory  of  the  sociological  interpreta- 

1  Stammler,  Rudolf.     Die    lehre    von    dem    richtigen   rechte.     Berlin, 

Guttentag,  1902-1907.     2  v. 

2  Stammler,  R.     Wirtsehaft  u.  recht.     2d  ed.      Leipzig,   Veit   &    Co., 

1906.     702  p. 

3  Stammler,   R.     Theorie  der  rechtswissenschaft.     Halle,   Waisenhaus, 

1911.     852  p. 


PHILOSOPHY   OF   LAW  39 

tion  ;uicl  application  of  law.     Contrary  to  Savigny's  theory 

that  law  is  an  unconscious  growth,  Kohlcr  holds  thai  law  is  a 
product  of  the  culture  of  a  people  in  the  past,  and  of  the 
attempt  to  adjust  it  to  the  culture  of  the  present,  in  which  a 
conscious  effort  may  be  prominent.  Scholars  generally  admit 
that  Kohk-r  is  the  most  versatile  if  not  the  greatest  of  living 
jurists.  Kohler's  leading  work  in  this  branch  of  law  is  his 
Lehrbuch  der  rechisphilosophie.1  Under  the  title  The  philoso- 
phy of  law,  this  book  is  being  translated  into  English  by 
Adalbert  Albrecht,  as  one  of  the  Modern  Legal  Philosophy 
Series.  It  is  expected  to  appear  very  shortly.  "The  mission 
and  objects  of  philosophy  of  law"  is  the  title  of  an  article  by 
Prof.  Kohler  which  appeared  in  the  Illinois  Law  Review, 
volume  5,  February,  191 1,  pages  423-430.  It  is  a  translation 
by  Albert  Kocourek,  of  Chicago,  of  an  article  which  was  first 
published  in  the  Archiv  fur  rechts-  wnd  wirtschaftsphUosophie. 
It  is  a  concise  statement  of  Kohler's  philosophy.  The 
translator's  final  note  on  the  slate  of  philosophy  of  law  in 
America  is  trenchant. 

The  object  of  Rudolf  Bierling's  Juristische  prinzipienlehre,2 
a  work  begun  almost  twenty  years  ago  and  just  completed, is  to 
consider  abstractly  and  present  systematically  the  concepts 
and  principles  underlying  positive  law.  The  author  considers 
law  as  having  a  formal  nature,  and  thus  differs  essentially  both 
from  the  old  law-of-nature  school  and  from  the  modern  legal 
philosophy.  An  extensive  review  of  the  first  volume  by  the 
late  Prof.  Iv.  Holder  of  Leipzig  is  found  in  the  Kritischt  1  iertel- 
jahresschrift  fur  </<  *•  tzgt  bung,  third  series,  volume  1  (vol.  37  of 
whole  series),  1895,  pages  1-52.  Besides  reviewing  volume  i, 
he  discusses  the  basic  principles  of  the  whole  work  and  Bier- 
ling's legal  philosophy. 

1  Knhlcr.  Josef.     Lehrbuch  der  rechtsphilosophie.     Berlin  and  Leipzig, 

W.  Rothschild.  1000.     219  p. 

2  Bierling,   Rudolf.    Juristische  prinzipienlehre.     Leipzig,  Mohr,   1894, 

1898,  1905,  1911.     4  v. 


40         GUIDE  TO  THE  LAW  OF  GERMANY 

A  recent  work  by  the  octogenarian,  Prof.  Ernst  Immanuel 
Bekker,  entitled  Grundbcgrifjc  des  rechts  und  missgrifje  der 
geselzgebung l  deserves  attention  among  works  on  this  subject. 
It  is  a  philosophic  study  of  the  basic  principles  of  law  from 
the  point  of  view  of  the  association  or  group  as  a  subject  of 
legal  rights.  A  second  volume  is  to  contain  a  further  discus- 
sion of  the  misconceptions  and  errors  of  legislation. 

A  periodical,  edited  by  Profs.  Kohler  and  Berolzheimer, 
dealing  largely  with  the  subject  of  legal  philosophy,  is  the 
Archiv  }iir  rechts-  und  wirtschafts  philosophic,  which  also  dis- 
cusses questions  of  legislation.  It  is  now  in  its  fourth  vear 
(Publishers,  W.  Rothschild,  Berlin). 

Reference  has  been  made  on  several  occasions  to  the  trans- 
lations of  German  works  that  are  to  appear  in  the  Modern 
Legal  Philosophy  Series,  edited  by  a  committee  of  the  Asso- 
ciation of  American  Law  Schools.2  The  series  is  also  to  include 
translations  of  important  works  on  the  philosophy  of  law  pre- 

1  Bekker,  E.  I.     Grundbegriffe  des  rechts  und  missgriffe  der  gesetzge- 

bung.     Berlin,  Rothschild,  1910. 
'l  The  Modern  Legal  Philosophy  Series  is  to  consist  of  the  following  vol- 
umes.— Volumes  I  and  IV  have  already  been  published,  and  others 
will  appear  shortly: 

I.  The  science  of  law.  By  Karl  Gareis  of  Univ.  of  Munich. 
Translated  by  Albert  Kocourek  of  Northwestern  Univ. 
Now  ready.  $3.50. 
II.  The  world's  legal  philosophies.  By  Fritz  Berolzheimer 
of  Berlin.  Translated  by  Mrs.  Joseph  Jastrow  of  Madison, 
Wis.     Now  ready.     $4  25. 

III.  Comparative  legal  philosophy,  in  its   application  to  legal 

institutions.  By  Luigi  Miraglia  of  the  Univ.  of  Naples. 
Translated  by  John  Lisle  of  the  Philadelphia  bar.  In 
press.     $4.75. 

IV.  General  theory  of  law.     By  N.  M.  Korkunov  of  the  Univ. 

of  St.  Petersburg.  Translated  by  W.  G.  Hastings  of  the 
Univ.  of  Nebraska.  Now  ready.  $3.50. 
V.  Law  as  a  means  to  an  end.  By  Rudolf  von  Ihering  of  the 
Univ.  of  Berlin.  Translated  by  Isaac  Husik  of  the  Univ. 
of  Pennsylvania.  Ready  1912.  $3.50. 
VI.  The  positive  philosophy  of  law.  By  I.  Vanni  of  the  Univ. 
of  Bologna.  Translated  by  John  Lisle  of  the  Philadelphia 
bar.     Ready  19 13.     $3.50. 


LEGAL   HISTORY  4 1 

anting  the  juristic  thought  of  the  most  prominent  Continental 
legal  philosophers.  The  value  of  this  work  to  the  American 
lawyer  can  not  be  overestimated.  The  profession  will  recall 
the  Essays  in  Anglo-American  legal  history,  edited  under  the 
auspices  of  this  same  Association.  They  are  adding  to  their 
monumental  labors  by  undertaking  the  publication  of  trans- 
lations of  the  most  important  Continental  works  on  legal  his- 
tory. For  these  meritorious  enterprises,  American  legal  schol- 
arship owes  to  these  committees,  and  especially  to  Prof. 
W'igmore,  one  of  their  most  active  and  inspiring  members,  a 
profound  and  lasting  debt  of  gratitude. 

LEGAL   HISTORY 

German  legal  scholars  make  a  distinction  between  the  his- 
tory of  legal  science  or  the  history  of  legal  theories,  and  the 
history  of  law  or  the  history  of  legal  institutions.  Probably 
the  greatest  work  on  the  history  of  German  legal  science,  the 
history  of  legal  theories,  is  that  by   Prof.   R.  von  Stintzing, 

VII.  Modern  French  legal  philosophy.  By  A.  Fouillee,  J.  Char- 
mont,  L.  Dllguit  and  R.  Demogue  of  the  Universities  of 
Paris.  Montpellier,  Bordeaux,  and  Lille.  Translated  by 
John  Simpson  of  the  New  York  bar.  Ready  1913.  S3 . 7 5 . 
VIII.  The  theory  of  justice.  By  Rudolf  Stammlcr  of  the  Univ. 
of  Halle.  S4.50. 
IX    .Select    essays    in    modern    legal    philosophy.     By   various 

authors.     $4.50. 
X.  The  formal  basisof  law.     ByG.  Del  Vecchioof  the  Univ. 
of  Bologna.     Translated  by  John  I. isle  of  the  Philadelphia 
liar.     Ready  1013.     $4.50. 
XI.  The  scientific  basis  of  legal  justice.     $4.75. 
XII.  The  philosophy  ol  law.     By  Joseph  Kohler  of  the  Univ.  of 
Berlin.     Translated  by  Adalbert  Albrccht  of  South  Eas- 
ton,  Mass.     Ready  1911.     $3. 50. 
XIII.    Philosophy  in    the  development   of   law.      By   1'.   Be    Tour 
touloii  of  the  Univ.  of  Lausanne.      $4.75. 
The  editorial  committee  consists  of    Profs.  Wigniorc.  Lorcnzcii,    Pound, 
Freund,  Huberich,  and  Kocourelc.     The   Boston    Book  Co.  are  the 
publishers. 


42         GUIDE  TO  THE  LAW  OF  GERMANY 

entitled  Geschichtc  der  deutschen  rechtswissenschaft.1  The 
author  was  able  to  finish  only  two  volumes  of  this  masterpiece, 
when  death  cut  short  his  scholarly  activities.  The  work  has 
recently  been  brought  to  a  close  by  the  publication  of  the 
fourth  volume  by  Dr.  Ernst  Landsberg,  who  had  previously 
published  the  third  volume.  The  original  author  carried  the 
work  to  1700.  The  entire  natural  law  school  of  Grotius  and 
the  authors  who  died  after  1700  are  treated  of  by  Dr.  Lands- 
berg.  The  third  volume,  which  reaches  the  beginning  of  the 
nineteenth  century,  brings  the  civil  law  up  to  the  threshold 
of  the  historical  school,  criminal  law  to  the  beginning  of  the 
speculative-philosophical  school,  and  public  law  to  the  end 
of  the  old  German  Empire.  The  volume  which  has  just  been 
published  brings  the  subject  matter  down  to  the  new  Civil 
Code  and  the  present  century. 

A  brief  account  of  the  development  of  law  in  Germany  from 
the  Leges  barbarorum  to  the  present  Civil  Code  is  contained  in 
Sir  Courtenay  Ilbert's  Legislative  methods  and  forms  (Oxford, 
Clarendon  Press,  1900),  pages  15-19.  The  introductions  to 
the  English  translations  of  the  German  Civil  Code  by  Wang 
and  Loewv  give  historical  accounts  of  German  law.  Schuster's 
Principles  of  German  civil  law  begins  its  introduction  with  a 
brief  historical  sketch. 

We  might  profitably  devote  many  pages  to  pointing  out 
only  the  important  books  on  legal  history  which  were  pub- 
lished during  the  sway  of  the  historical  school  in  the  nine- 
teenth century.  The  literature  of  the  period  is,  however, 
discussed  in  the  majority  of  the  more  recent  works  on 
legal  history,  so  that,  however  tempting  it  may  be  to  pay 
tribute  to  that  remarkable  scholarship  which  has  explored 
the  field  of  legal  history  with  an  industry  and  a  detail  hitherto 

1  Stintzing,  R.  von.  Geschichte  der  deutschen  rechtswissenschaft.  4 
vols.  v.  3  and  4  by  Dr.  Landsberg.  Munich,  R.  Oldenburg,  1880- 
1910. 


LEGAI,   HISTORY  43 

unknown,  we  must   dismiss  this  voluminous  work   without 

comment,   and   pass  on.     To  show  that   the  work  of  these 

scholars  was  not  in  vain  we  may  be  pardoned  in  again  making 

um   of  Maitland's  words  (Collected  Papers,  vol.  Ill,  p.  463) : 

This  people  of  pedants  and  dreamers,  of  antiquaries  and  metaphysi- 
cians, after  discussing  the  history  of  every  legal  term  and  every  legal 
idea,  has  made  for  itself  what  is  out  and  away  the  best  code  that  the 
world  has  yet  seen. 

The  greatest  living  exponent  "f  the  history  of  German  law- 
is  the  venerable  Prof.  Heinrich  Brunner  of  Berlin.  His  lead- 
ing work,  Deutsche  rechtsgeschichte  '  was  published  in  two  vol- 
umes, 1 887-1 892;  the  first  volume  reached  a  second  edi- 
tion in  1906.  The  work  constitutes  part  of  a  series  edited  by 
Prof.  Binding,  of  Munich,  under  the  title  Systematisches  hatid- 
buck  tlir  deutschen  rechtswissensckaft.  Kach  contribution  to 
(his  collection  is  important.  The  first  volume  of  Brunner's 
work  treats  of  the  early  Germanic  period  and  in  a  merely  gen- 
eral way  of  the  Prankish.  The  second  treats  especially  of  the 
Prankish  period  and  of  the  different  legal  institutions  of  the 
Pranks.  Another  similar  work  of  Brunner's  on  German  legal 
history  is  entitled  Grundzuge  der  deutschen  rechtsgeschichte? 
the  fourth  edition  of  which  appeared  in  1910.  It  was  orig 
inally  a  revision  of  Brunner's  article  Quellen  und  geschichte 
&  \  deutschen  rechts,  which  appeared  in  the  fifth  edition  (1890) 
of  Holtzendorff's  Encyklopddie.  It  is  a  summary  account 
only,  but  comes  down  to  very  modern  times.  His  larger 
work,  just  mentioned,  stops  with  the  Frankish  period  and 
is,  therefore,  incomplete.  Both  contain  copious  bibliographic 
notes.  In  his  Forschungen  zur  geschichte  des  deutschen  und 
jranzosisclu  n  rechts,3  l'rof.  Brunner  has  collected  a  number  of 

'  Brunner,    H.     Deutsche   rechtsgeschichte.     2    vols.     v.    1.,    2d    ed  . 

1906.     Leipzig,  Duncker  &  Humblot,  njoG,  1S9.;. 
-Brunner,   H.    Grundzuge    der  deutschen    rechtsgeschichte,    |ih    ed 

Leipzig,  Duncker  &  Humblot,  1910. 
3  Brunner,  H.     Forschungen   zur  geschichte   des  deutschen   und  frau- 

zosischen  rechts.     Stuttgart,  J.  G.  Cotta,    1894.     750  p. 


44  GUIDE   TO   THE   LAW   OF   GERMANY 

articles  on  the  history  of  procedure  and  on  criminal  and  civil 
law,  previously  published  at  various  places. 

A  well-known  treatise,  very  popular  in  German  universities, 
is  that  by  Prof .  Schroder  of  Heidelberg,  Lchrbuch  der  deutschen 
rechtsgeschichte,1  the  fifth  edition  of  which  appeared  in  1907. 
It  is  learned,  methodical  and  accurate,  and  plentifully  supplied 
with  bibliographic  notes.  It  presents  the  whole  of  German 
legal  history  in  compact  form,  somewhat  analagous  to  the 
work  of  Viollet  on  French  and  Schupfer  on  Italian  legal  his- 
tory. Prof.  Heinrich  Siegel's  Deutsche  rechtsgeschichte  -  is  a 
brilliant  work.  Another  well-known  treatise  is  that  by  Prof. 
J.  F.  Schulte  of  Bonn,  entitled  Lchrbuch  der  deutschen  reichs- 
11  nil  rechtsgeschichte.3  It  is  a  simple  presentation,  uncolored, 
of  the  public  and  private  law  of  German)-,  the  various 
legal  institutions  being  treated  individually.  A  valuable 
work  on  the  history  of  the  sources  of  German  law  was  pub- 
lished by  Prof.  Otto  Stobbe,  Gesckichte  der  deutschen  rechts- 
quellen.*  It  covers  the  period  from  the  tribal  laws  to  the 
first  Commercial  Code  of  186 1.  It  is  still  a  standard  work 
and  excellent  for  the  earlier  legal  literature.  Two  of  the  older 
works  on  German  legal  history  which  still  enjoy  a  scholarly 
reputation  are  those  by  Prof.  Zoepfl  '  and  Prof.  Walter.'' 
Prof.  Zoepfl  separates  the  history  of  the  sources  from  the  his- 
tory of  the  legal  institutions,  which  he  divides  into  public  and 

1  Schroeder,    R.    K.    H.      Lehrbuch    der   deutschen    rechtsgeschichte. 

5th  ed.     Leipzig,  Veit,  1907.     1016  p. 
'  Siegel,    H.      Deutsche    rechtsgeschichte.      Berlin,    F.    Vahlen,    1895. 

593  P- 

*  Schulte,  J.  F.  Lehrbuch  der  deutschen  reichs-  und  rechtsge- 
schichte.    6th  ed.     Stuttgart,  Nitzschke,  1892. 

4  Stobbe,  Otto.  Geschichte  der  deutschen  rechtsquellen.  Leipzig, 
Duncker  &  Humblot,  1860-1864.     2  v. 

■'  Zoepfl,  Heinrich  Matthias.  Deutsche  rechtsgeschichte.  4th  ed. 
Braunschweig,  F.  Wreden,  1871-72.     3  v.  in  2. 

''  Walter,  Ferdinand.  Deutsche  rechtsgeschichte.  2d  ed.  Bonn,  A. 
Marcus,  1857.     2  v. 


LEGAL   HISTORY  45 

private  law,  civil  and  criminal  law  and  procedure.  The  work 
is  profusely  supplied  with  footnotes.  As  an  example  of  pro- 
found research  on  the  subject  of  inheritance  in  Germanic  law, 
we  may  mention  the  work  of  the  late  Dr.  Julius  Ficker,1 
who  also  did  such  scholarly  work  in  Italian  legal  history. 

A  valuable  periodical,  the  Zeilschrifi  fur  rechtsgeschichte, 
was  founded  in  1861  by  several  professors,  and  continued  after 
its  fourteenth  volume  under  the  title  Zeilschrifi  der  Savigny- 
stiftung  fur  rechtsgeschichte.  It  still  appears  in  the  two  parts 
which  were  then  established,  Roman  law  and  German  law 
(Romanistische  und  Germanislische  Abteilung).  Scholarlv 
articles  appear  in  it.  A  new  periodical  Gaius,  Zeitschrijt  fur 
rechtsgeschichte  (Vienna,  Manz)  founded  by  Prof.  Pineles.of  the 
University  of  Vienna,  has  for  one  of  its  primary  objects  the 
study  of  questions  of  legal  history.  The  first  volume  covers 
the  years  1 907-1 910.  Two  collections  of  monographs  on  legal 
history,  the  one  appearing  under  the  general  editorship  of 
Prof.  ( >tto  Gierke  -  and  the  other  lately  begun  by  Prof.  Konrad 
Beyerle,'  while  occasionally  containing  excellent  contributions — 
especially  those  by  Prof.  Gierke — warrant  only  cursory  atten- 
tion in  this  survey. 

The  more  important  works  dealing  strictly  with  the  history 
of  Germanic  law,  will  be  mentioned  below  in  discussing  the 
elements  which  contributed  to  make  up  the  present  German 
Civil  Code.  Nevertheless,  it  may  be  well  to  call  attention 
here  to  a  collection   of   translations  of   works  on  continental 

1  Ficker,  Julius.     Untersuchungen  zur  erbenfolge  <ler  ostgermanischen 

rechte.      Innsbruck,  Wagner,   iScji    iijo|.     (1  v. 
'-'  Untersuchungen    zur   deutschen   staats-   und    rechtsgeschichte  Hrsg. 

von  Gierke.     Breslau,   1878-1(111.     104  v. 
*  Beyerle,    Conrad.     Deutschrechtliche    beitrage.     Heidelberg,    1907- 

191 1.     6  v. 


46        GUIDE  TO  THE  LAW  OF  GERMANY 

legal  history  which  is  now  being  undertaken,  and  is  to  include 
several  German  works.  ' 

The  historical  evolution  of  German  civil  law  involves  a  study 
of  the  component  elements  which  entered  into  the  drafting  of 
the  present  Civil  Code.  Prof.  Gareis  in  his  Science  of  law,  pp. 
114-118,  describes  the  territorial  distribution  of  the  principal 
bodies  of  law  which  were  in  force  in  Germany  before  the  enact- 
ment of  the  Civil  Code.    He  describes  these  as  (a)  the  "received" 

1  The  Continental  Legal  History  Series  will  include  the  following  eleven 
volumes  in  English  translation : 

1.  Historical  survey  of  the  sources,  literature,  and  general  devel- 

opment of  continental  law.  By  R.  Altamira,  H.  Brissaud, 
H.  Brunner,  C.  Calisse,  E.  Hertzberg,  E.  Huber,  M.  Planiol, 
R.  Stintzing,  J.  A.  Van  Hamel,  and  others.  Translated  by 
Rapelje Howell,  Francis  S.  Philbrick,  and  John  H.  Wigmore. 

2.  Great  jurists  of  the  world,  from  Papinian  to  von  Ihering.     By 

various  authors. 

3.  History  of  French  private  law.     By  Henri  Brissaud.     Trans- 

lated by  Rapelje  Howell. 

4.  History  of  Germanic   private   law.     By    Rudolf   Huebner. 

Translated  by  Francis  S.  Philbrick. 

5.  History  of  continental  criminal  procedure,  with  special  refer- 

ence to  France,  and  an  excursus  on  Germany.  By  A.  Es- 
mein,  with  chapters  by  Francois  Garraud,  and  by  C.  J.  A. 
Mittermaier.     Translated  by  John  Simpson. 

6.  History  of  continental  criminal  law,  with  special  reference  to 

Germany,  and  an  excursus  on  France.  By  Ludwig  von  Bar, 
with  chapters  by  E.  Glasson.  Translated  by  Thomas  S. 
Bell. 

7.  History  of  continental  civil  procedure,  with  special  reference 

to  Germany,  and  an  excursus  on  France.  By  Arthur  Engel- 
mann,  with  a  chapter  by  E.  Glasson.  Translated  by  Robert 
Wyness  Millar. 

8.  History  of  Italian  law.     By  Carlo   Calisse.     Translated  by 

John  Lisle. 

9.  History  of  French  public  law.     By  Henri  Brissaud.     Trans- 

lated by  Rapelje  Howell. 

10.  History  of  continental  commercial  law.     By  Paul  Huvelin. 

Translated  by  Ernest  G.  Lorenzen. 

11.  The  evolution  of  la~w  in  Europe.    By  Gabriel  Tarde  and  others. 
The  editorial  committee  is  composed  of  Profs.  Wigmore,  Lorenzen, 

Freund,  Huberich  and  Mikell.     The  publishers  are  Little,  Brown,  and 
Co.  of  Boston. 


LEGAL   HISTORY  47 

Roman  law  or" Gemeines  Recht;"  (6)  the  Prussian  "  Landreckt," 
officially  drawn  up  after  many  years  of  preparation  in  1794, 
under  the  direction  of  Frederick  the  Great;  (c)  the  French  law 
in  the  upper  Rhine  region,  and  (</)  the  Saxon  code  of  1863. 
Dr.  Ernest  Schuster  adds  two  further  groups  to  the  bodies  of 
law  then  in  force.  But  the  two  principal  component  systems 
of  the  present  Civil  Code  are  unquestionably  the  subsidiary 
common  law  or  the  Roman  law  as  "received"  and  developed 
in  Germany  after  1495,  and  the  Prussian  "  Landreckt."  Works, 
therefore,  dealing  with  German  private  law  before  the  enact- 
ment of  the  code  may  now  be  discussed  under  the  head  of 
legal  history.  They  are  usually  written  from  the  standpoint 
of  the  Germanist  as  opposed  to  that  of  the  Romanist. 

The  works  on  German  private  law  (Deutsches  Privatrecht)  u^" Barba- 
are  largely  historical  studies  of  the  German  folk  laws  or  tribal 
laws  of  the  period  between  the  fifth  and  ninth  centuries.  A 
very  good  edition  of  these  so-called  barbarian  laws  (Leges 
barbarorum)  is  that  by  Canciani,1  in  five  volumes,  published 
at  the  end  of  the  eighteenth  century.  Another  text  edition 
of  these  laws,  including  the  capilularia  was  edited  by  Ferd. 
Walter2  in  three  volumes.  It  may  be  well  to  mention  the 
excellent  edition  of  the  Anglo-Saxon  laws  which  have 
recently  been  edited  by  Dr.  Felix  Liebermann  3  at  the  instance 
of  the  Bavarian  Academy,  and  at  the  expense  of  the  Savign) 
St  if  lung  fiir  Rechtsgeschichte.  Prof.  Maitland,  one  of  the 
greatest  of  modern  English  scholars,  made  the  appearance 
of  this  edition  the  occasion  for  writing  an  essay  on  "The  laws 
of  the  Anglo-Saxons,"  which  he  published  in  the  Quarterly 

1  Canciani,  Paolo.     Barbarorum  leges  antiquac  cum   notis  e1   glossariis 

.  .  .  Venetiis,  apud  S.  Coletium  el  F.  Pitterium,  [781-92.     5  V. 

2  Walter,     Ferd.     Corpus    juris    germanici    antiqui.     Berlin,    Rentier, 

1824.     3  v. 
*  I.ieliermann.  S.     Die  gesetze  der  Angelsachsen.     I.  II.1  Hreg.  im  auf- 
trage  der  Savigny-stiftung.     Halle.  Niemeyer,  [898  1906, 


48         GUIDE  TO  THE  LAW  OF  GERMANY 

Review,  July  1904,  and  which  is  reprinted  in  the  recent 
edition  of  the  Collected  papers  of  Frederic  William  Mailland, 
edited  by  Herbert  Fisher,  volume  3,  pages  447-473.  He  dis- 
cusses the  previous  editions  of  the  Anglo-Saxon  laws,  and 
pays  a  flattering  tribute  to  Liebermann's  edition. 

The  most  important  of  the  Leges  barbarorum  is,  of  course, 
the  Lex  Salica  or  Salic  law.  Of  this  law  we  have  an  excellent 
English  edition  by  Hessels  and  Kern,1  published  in  1880.  A 
good  French  edition,  an  improvement  on  all  previous  editions, 
was  that  by  Pardessus,2  published  by  the  French  Govern- 
ment in  1843.  The  author  gives  all  the  existing  versions  of 
the  Lex  Salica  in  eight  successive  texts.  The  best  modern 
German  edition  is  that  by  J.  F.  Behrend,'1  published  in  1897. 
Hessels,  however,  basing  his  remarks  on  the  first  edition,  finds 
that  this  work  does  not  afford  the  necessary  facilities  for 
synoptical  study.  Two  important  studies  on  the  laws  of  the 
Salic  Franks  were  published  by  the  historian,  Georg  Waitz,4 
in  1846  and  by  Prof.  Clement  "'  (in  a  second  edition  by  Prof. 
Zoepfl)  in  1879.  Nor  should  we  fail  to  mention  the  excellent 
text  and  partly  critical  editions  of  the  various  Leges  Barbaro- 
rum which  appear  in  that  monumental  historical  work,  the 
Monumenta  Germanics  Historica.  ° 

1  Hessels,  J.  H.  &  Kern,  H.  Lex  salica:  the  ten  texts  with  the  glosses, 
and  the  lex  emendata.     London,  J.  Murray,  18S0.     692  col.  on  252  p. 

8  Pardessus,  Jean  Marie.  Loi  salique  ou  recueil  contenant  les  anciennes 
redactions  de  cette  loi  et  le  texte  connu  sous  le  nom  de  lex  emendata 
avec  des  notes  et  des  dissertations.  Paris,  Imprimerie  royale,  1843. 
50+740  p. 

3  Behrend,  F.  J.     Lex   salica.     2d   ed.    by  R.    Behrend.     Weimar,   H. 

Bohlaus,  1897.     236  p. 

4  Waitz,  Georg.     Das  alte  recht  der  Salischen  Franken.     Kiel,  1846. 

5  Clement,  K.  J.     Forschungen  iiber  das  recht  der  Salischen  Franken 

vor  und  in  der  konigszeit.  Hrsg.  von  H.  Zoepfl.  2d  ed.  Berlin, 
1879. 
15  Monumenta  Germaniae  historica.  Berlin,  Wiedmann,  1826-1909. 
Particularly  the  Leges  and  Constitutiones.  Important  editions  of 
the  old  Germanic  tribal  laws  are  noted  in  Gierke,  DeuUches  privat- 
rechl,  I,  p.  61,  notes  2  and  3. 


LEGAL   HISTORY  49 

A  good  account  of  legislation  and  legal  development  in 
Germany  from  the  fifth  to  the  fourteenth  centuries  is  con- 
tained in  Chapter  IV,  volume  1 ,  pages  156-231  of  Herbert 
Fisher's  TU>  medieval  empire  (London,  Macmillan,  1898). 
Some  explanations  of  the  various  laws  of  the  barbarian  tribes 
of  Germany  are  presented  in  an  historical  work  on  the  struc- 
ture of  feudal  society  by  Edgar  II.  McNeal  in  a  University  of 
Chicago  doctor's  dissertation,  published  in  1905.1  He  treats 
especially  the  Burgundian.  Alemaunic,  Lombard,  Yisigothie, 
and  Bavarian  codes.  A  learned  article  on  the  spread  of  Ger- 
manic laws  throughout  the  world  was  published  as  a  rector's 
address  by  Prof.  Karl  Lehmann,'  of  Rostock,  in  1905. 

On  German  private  law  as  a  system,  several  learned  treatises  German  pm- 
have  been  published.  Perhaps  the  most  celebrated  is  that 
nf  Prof.  Otto  Gierke, n  of  Berlin,  the  venerable  Germanist,  to 
whose  work  we  shall  have  occasion  to  recur.  It  was  pub- 
lished as  a  part  of  Binding's  Systemaiisches  Handbuch,  to 
which  we  have  already  referred.  It  may  be  well  here  to  point 
nut  a  distinction  which  Germans  make  between  "Handbuch" 
and  "Lehrbuch."  The  "Handbuch'  is  really  a  scientific 
treatment  and  critical  discussion  of  the  sources  and  other 
material,  including  the  literature  connected  with  a  subject. 
The  "Lehrbuch"  is  a  treatise  which  presents  positive  law  as  a 
dogmatic  system,  without  criticism,  although  historical  devel- 
opment maybe  recognized.  Our  "handbook"  is  the  equiva- 
lent of  the  German  " Handausgabe."  The  first  volume  of 
Gierke's  work  treats  of  general  legal  concepts  and  the  general 
law  of  persons;  volume  two,  of  the  law  of  things.     Under  the 

1  McNeal,  Ldgar  H.     Minores  and   mediocres  in   the   Germanic  tribal 

laws.     Columbus,  Hoer,  1905.     130  p. 
2 Lehmann,  Karl.     Rezeptionen  germanischer  rechte.     Rede  zur  feier 

-  Februar  1005.     Rostock,  Adler,  1905.         p 
1  Gierke.  Otto  Friedrich.     Deutsches  privatrecht.      Leipzig,    Duneker 

&  Humblot,  1895-1905.     2  v. 

29774°— 12 4 


50         GUIDE  TO  THE  LAW  OF  GERMANY 

rights  of  persons,  the  so-called  "immaterial  rechte"  (rights  in 
immaterial  things,  or  what  we  might  call  incorporeal  rights, 
patent  right,  copyright,  etc.)  are  treated.  Many  German 
writers  treat  these  rights  as  a  part  of  the  law  of  things;  they 
divide  " Sachenrecht"  into  the  law  of  material  things,  or  real 
rights,  and  the  law  of  immaterial  things,  or  rights  peculiar 
to  the  person,  such  as  patent  and  copyright.  Another  im- 
portant work  on  German  private  law  which  has  now  gone 
through  three  editions,  is  the  " Handbuck"  of  Prof.  Stobbe,1 
the  latest  five  volume  edition  of  which  was  published  between 
1885  and  1900.  Stobbe's  work  stands  alone  in  its  masterly 
working  up  of  the  Germanic  sources  and  manuscripts.  Be- 
sides its  critical  discussion  of  the  sources  and  literature,  it  also 
examines  existing  law.  Nor,  in  this  connection,  must  the 
work  of  Prof.  Karl  von  Amira,2  the  noted  scholar  of  Munich, 
be  left  unmentioned.  His  Grundriss  des  germanischen  rechti 
is  deservedly  held  in  high  esteem.  Konrad  von  Maurer's  re- 
searches into  the  legal  history  and  institutions  of  the  northern 
Teutonic  peoples  have  placed  him  in  the  front  rank  of  legal 
historians. 

Two  works,  both  of  which  treat  the  subject  matter  from 
the  Germanic  viewpoint  and  which  along  historical  lines  fol- 
low the  divisions  of  the  present  Civil  Code,  are  those  by  Prof. 
Heusler  3  of  Basel,  one  of  the  Binding  series,  and  by  Prof. 
Hiibner4  called  "Principles  of  German  private  law."  The 
latter  is  perhaps  the  best  one  volume  edition  on  the  subject. 


1  Stobbe,   Otto.     Handbuch   des  deutschen   privatrechts.      Berlin,    W. 

Hertz,    1885-1000.      5   v.    in   6.     (v.    I-IV,   3rd  ed.     1895-1000;  v. 
V,  2d  ed.  1885.) 

2  Amira,    Karl   von.     Grundriss     des     germanischen    rechts.      2d    ed. 

Strassburg,  K.  J.  Triibner,  igoi.     (Reprint  from  H.  Paul's  Grundriss 

der  germanischen  philologie.) 
:i  Heusler,  Andreas.     Institutionen  des  deutschen  privatrechts.     Leipzig, 

Duncker  &  Humblot.  1885-86.     2  v. 
*  Hiibner,   Rudolf.     Grundziige  des  deutschen  privatrechts.     Leipzig. 

A.  Deichert,  1908.     757  p.     Second  edition  in  press. 


LEGAL    HISTORY  51 

It  is  shortly  tn  be  translated  into  English  (see  footnote, 
p.  46).  A  few  other  important  works  on  the  subject,  of  some- 
what less  value  for  present  day  study  than  those  just  men- 
tioned, are  the  "System"  of  Prof.  Beseler,1  the  father  of  the 
Germanists,  and  those  by  Prof,  von  Roth  -  and  Prof.  Gerber.8 
We  can  not  leave  the  subject  of  the  history  of  German  private 
law  without  mentioning  a  remarkable  philological  work  which 
has  become  a  classic.  This  is  Grimm's  celebrated  P<  utsche 
rechtsalterthiimer*  first  published  in  iSjS,  which  in  a  fourth 
edition  by  Profs.  Heusler  anil  Hiibner,  appeared  in  1899.  The 
author  was  a  philologist  rather  than  a  jurist.  The  history  of 
legal  institutions  are  traced  from  their  philological  symbols 
and  their  terminology. 

The   law  of  the   Prussian    " Landreckt"   which  exercised   so,1''" 

Landrecnt 

much  influence  on  the  Civil  Code  is,  perhaps,  best  presented 

in  the  work  by  Koch,5  the  eighth  edition  of  which  was  com- 
pleted in  1886.  It  treats  the  subject  in  the  form  of  a  com- 
mentary. By  the  term  " Kotnmentar"  (commentary),  which 
will  occur  frequently  in  the  course  of  this  Guide,  the  Germans 
understand  a  treatment  of  a  codified  subject  or  of  the  sections 
of  a  statute,  article  by  article,  with  notes  and  annotations 
under  each.  Two  important  works  on  Prussian  private  law 
are    the    treatise   by    Dernburg,''1   in    three   volumes,    the   fifth 

ler.     System    des    gemeinen    deutschen    privatrechts.     Leipzig, 

A.  Deichert,  1908. 
-'  Roth.    Paul    von.     System    des    deutchen    privatrechts.     Tubingen, 

1880-86.     3  v. 
•Gerber.     System   des   deutschen    privatrechts.     17th   ed    i>>    Cosack, 

|.  na,  Fischer,  1895. 
*  Grimm,  Jal  oh      1  leutsche  rechtalterth timer .     4th  ed,  by  A.  Heusler  & 

R.  Hiibner.     I  Diet  ri<  h    1809.     -•  v. 

'  Koch,  C.  I-".    Das  allgemeine  landrecnt  fur  die  preussischen  staaten.    8th 

ed.,  by  A.  Achilles   I'.  Hinschius,  R   Johow  &  1".  Vierhaus.     Berlin 

Guttentag,  1883-86.     4  v. 
'■  Demburg,  Heinrich.     Lehrbuch  des  preussischen  privatrechts  und  der 

privatrechtsnormen  des  reichs.     Halle  .>.  S . .  Waisenhaus,  [894-97. 

3  v. 


52  GUIDE   TO   THE   LAW   OF   GERMANY 

edition  of  which  was  completed  in  1897,  and  that  by  Forster  ' 
in  four  volumes,  the  seventh  edition  of  which  was  completed 
in  the  same  year.  Another  work,  somewhat  less  useful,  was 
edited  by  two  judges,  Rehbein2  and  Reincke.  It  is  now  out 
of  print. 

Saxon  Code  A  work  on  the  private  law  of  Saxony  which  is  discussed  in 
the  protocols  of  the  codifiers  of  the  Civil  Code,  is  that  by 
Griitzmann,3  published  at  Leipzig  in  1 887-1 889. 

Baden  Land-     a  good  edition  of  the  "  Landrecht"  of    Baden,4  which  con- 

recht 

tains  most  of  the  French  elements  which  entered  into  the 
composition  of  the  Civil  Code,  reached  a  fourth  edition  in 
1899. 
Reception  of  Roman  law  as  it  was  in  force  on  German  territory  after  its 
so-called  "Reception"  in  1495,  the  date  of  the  constitution  of 
the  Imperial  Chamber  Court  (Reichskammergerichf) ,  entered 
very  largely  into  the  composition  of  the  new  Civil  Code.  This 
introduction  of  Roman  law  into  Germany  is  one  of  the  most 
important  chapters  in  the  history  of  law  in  Europe.  It  was 
one  of  the  effects  of  the  revival  of  classical  learning,  aided  on 
the  one  hand  by  the  political  union  of  Germany  and  northern 
Italy,  by  which  German  students  became  imbued  with  the 
principles  of  Roman  law,  and,  on  the  other  hand,  by  the 
feeling  that  the  German  Emperor  was  the  successor  of  the 
Roman  Caesars.  This  period  of  German  law  and  its  influence 
upon  modern  law  is,  of  course,  dealt  with  in  all  the  more 
important  general  works  on  German  legal  history.  An  excel- 
lent essay  by  Prof.  Grueber  on  the  relation  between  Roman 
law  and  modern  German  law  may  be  found  in  the  introduc- 
tion to  Eedlie's  English  translation  of  Sohm's  Institutes,  first 


1  Forster,  Franz   A.  A.     Preussisches  privatrecht.     yth   ed..  by   M.  E. 

Eccius.     Berlin,  G.  Reimer,  1896-97.     4  v. 

2  Rehbein,   Hugo   &   Reincke,    Otto.      Allgemeines   landrecht   fur   die 

preussischen  staaten.  .  .     5th  ed.  Berlin,  Muller,  1894.     4  v. 

3  Griitzmann,  P.  Lehrbuch  des  kgl.   sachsischen  privatrechts.     Leipzig. 

Breitkopf  &  Hartel,  1887-S9.     2  v. 

4  Das  Badische  landrecht.     4th  ed.  Karlsruhe,  Lang,  1899.     456  p. 


LEG  AT.    HISTORY  53 

edition.'     One  of  the  best  treatments  in  English  of  the  special 

period  of  the  "reception"  is  presented  in  a  small  book  recently 
published  by  Prof.  Paul  Yinogradoff  of  the  University  of  Ox- 
ford, entitled  Roman  law  in  meduBvcU  Europe.2  The  fate  of 
the  Roman  law  is  dealt  with  in  France,  England  and  Ger- 
many, pages  1 06- 1  ,;t  covering  the  Roman  law  in  German  v. 
The  book  is  marked  by  the  learning  which  characterizes  all 
the  work  of  its  distinguished  author.  Mr.  Holdsworth,  the 
author  of  the  monumental  work  on  the  "History  of  English 
law."  has  just  published,  in  recent  numbers  of  the  Law  Quar- 
terly Review  (v.  27,  pp.  387-398;  v.  28,  pp.  39-51),  an  interest- 
ing account  of  the  "Reception  of  Roman  law  in  the  sixteenth 
century."  The  first  two  installments  of  the  article  have  thus 
far  appeared.  A  good  account  of  this  period  of  German  legal 
history  may  be  found  in  chapter  XV,  pages  399-416  of  Guy 
Carleton  Lee's  Historical  jurisprudence  (New  York,  Macmillau, 
1900).  It  concludes  with  a  brief  sketch  of  the  history  of  codifi- 
cation in  Germany.  John  Chipman  Gray  in  Appendix  III  (pp. 
303-306)  of  his  Nature  and  sources  0}  tin  law  deals  with  the 
"reception"  of  Roman  law.  He  quotes  largely  from  Stobbe. 
A  valuable  work  on  this  period,  which  covers  the  literature  ex- 
haustively, was  published  by  tin-  eminent  scholar  R.  Stintzing.3 
Two  smaller  monographs,  bj  reason  of  tin-  prominence  which 
they  have  received  in  the  literature,  deserve  special  mention. 
The  first  is  a  work  by  Modderman  published  about  40  years 
ago,4  and  the  other  a  recent  work  by  Georg  von  Below.5 


'Sohin,  Rudolph.     The  institutes,  a  text  book  of  the  history  and  system 

of  Roman  private  law,  translated  by  James  Crawford  Ledlie.    3d  ed. 

Oxford,  1907.     606  ]i.     First  ed.  1X92. 
8 Vinogradoff,   Paul.     Roman  law  in  mediaeval   Europe.     London  and 

New  York,  Harper  &  liros..  1909.     136  p. 
•'  Stintzing.  R.    Geschichte der  popularen  literatur  des  rflmischen-kanoni- 

schen  rechts  in  Deutschland.     Leipzig,  1867. 
'Modderman,  W.     Die  rezeption  des  r&mischen  rechts      VusdemHol- 

landischen  Qbersetzt  von  K.  Scbulz.     Jena,  Dufft,  1875.      128  p. 
5  Below.  Georg  von.     Die  ursaehen  der  rezeption  des  romischen  rechts 

in  Deutschland.     Munich,  0105       i'x.  |> 


54  GUIDE   TO   THE    LAW    OF   GERMANY 

The  classic  work  on  modern  Roman  law  is  the  eight  volume 
"System"  1  of  Savigny,  which  treats  of  general  doctrines. 
Volumes  i,  2,  and  8  have  been  translated  into  English.-  The 
introduction  to  the  English  translation  of  volume  8  contains 
a  short  digest  of  the  contents  of  the  "System."  Savigny's 
work  on  Obligationenrecht  (the  law  of  obligations  1,  two  vol- 
umes of  which  had  appeared  up  to  1853,  was  never  completed. 
An  English  edition  of  this  work  in  the  form  of  an  analysis, 
with  notes,  was  published  in  1872  by  Archibald  Brown.3 
Fandekicn-      Modern  Roman  law  as  expounded  in  Germany  is  known 

recht 

under  the  name  of  "Pandektenrecht"  and  consists  largely  of 
the  digest  of  Justinian's  Corpus  Juris.  Perhaps  the  most 
valuable  of  the  works  on  "Pandektenrecht,"  although  there 
are  many  excellent  ones,  is  that  by  Prof.  Windscheid,  a  very 
active  member  of  the  commission  which  drafted  the  first 
project  of  the  Civil  Code.  His  Lehrbuch*  the  ninth  edition 
of  which  was  edited  by  Theodor  Kipp  in  1906,  is  valuable  for 
its  keen  distinctions,  its  thoroughness  and  its  critical  discussion 
of  the  literature;  its  comparative  presentation  of  Roman  and 
German  civil  law  also  distinguishes  this  work.  A  hardly  less 
important  work  is  that  by  the  late  Prof.  Dernburg,5  the  eighth 
edition  of  which,  by  Sokalowski,  has  recently  appeared.  It 
is  distinguished  by  its  account  of  the  latest  practice,  its  clear- 


1  Savigny,  Friedrich  Carl  von.     System  des  heutigen  romischen  rechts. 

Berlin,  1840-49.     8  v.  &  Sachen-  und  quellen-register  .  .  .  von  O.  L. 

Heusler.     Berlin.  1851. 
2 Savigny,  Friedrich  Carl    von.       v.    1    by   William    Holloway    (Madras, 

Higginbotham,  1867);  v.  2  entitled  Jural  1  Jetton*  by  W.  G.  Rattigan 

(London,  Wiley,    1894);  v.  8.      The  conflict  of  laws,  by   William 

Guthrie.     2d  ed.     Edinburgh,  Clark,  1880. 
'Savigny,  Friedrich  Carl  von.     An  epitome  and  analysis  of  treatise  on 

obligations  in  Roman  law,  with  notes  by  Archibald  Brown.     Lon- 
don, 1872. 
*  Windscheid,   Bcrnhard.      Lehrbuch   des  pandektenrechts  .  .  .  9th  ed., 

by  Theodor  Kipp.     Frankfurt  a.  M.,  Rutten  &  Loening,  1906.     3  v. 
5  Dernburg.  Heinrich.      Pandekten.     7th  ed.,   by  Johannes   Biermann. 

Berlin,  H.  W.  Muller.  1902-1903.     3  V.     Sth  ed.  by  Paul  Sokalowski. 

1911-1912. 


LEGAL   HISTORY  55 

ness  and  its  splendid  style.  Another  able,  although  incom- 
plete work  on  the  subject  is  that  by  Prof.  Regelsberger,1  of 
Gottingen,  published  in  the  series  of  Binding.  It  treats  only 
of  the  general  doctrines  of  law  and  the  law  of  persons;  it  is 
distinguished  by  the  thoroughness  of  its  research.  The  work 
of  Puchta,2  one  of  the  greatest  Romanists  of  his  time,  is  still 
consulted  by  legal  scholars.  The  last  edition  was  the  twelfth 
in  [877.  Nor  should  we  fail  to  mention  Puchta's  well-known 
I  orlesungen s  (lectures),  the  sixth  edition  of  which  appeared 
in  two  volumes  in  1874.  Prof,  von  Vangerow's  Leitfaden 
(Guide)/  the  seventh  edition  of  which  was  published  in  three 
volumes  in  1 863-1869,  is  valuable  for  its  discussion  of  special 
detailed  questions  of  Roman  law.  The  treatise  of  Brinz,5 
in  four  volumes,  which  was  partly  written  by  Lotmar,  also 
deserves  attention.  It  is  brilliant  and  exhaustive,  but  the 
material  is,  unfortunately,  not  well  organized  and  arranged. 
A  work  of  value  in  the  investigation  of  the  Roman  law  sources 
of  modern  German  civil  kiwis  Prof.  KevananrisHandlexikon,* 
the  ninth  edition  of  which  was  published  by  Seckel  in  1907. 
It  is  exhaustive  and  reliable.  For  the  same  purpose,  Bruns 
i'onti  s 7  are  of  value. 

1  Regelsberger,  Ferdinand.  Pandekten.  Leipzig,  Duncker  &  Hum- 
blot,  1893.  Regelsberger,  who  died  within  the  last  year,  is  con- 
sidered one  of  tin-  greatest  of  modern  jurists.  A  biographical  sketch 
liv  Prof.  Knoke  of  Konigsberg,  with  a  complete  bibliography  of 
Regelsberger 's  writings  appears  in  the  last  number  of  Jhering's 
I  ihrbuchcr,  v.  60.  1  5  heft  (1911),  p.  1-38. 
Puchta,  ('■.  F.     Pandekten.     12th ed.,  by  T.  Schirmer.     la  ipzig,  Barth, 

i*77- 

Puchta,  1 '■    F.     \oii,   tiii  -i  1 1    nil.  1   1I1.  heutigc   romische  recht.     Mh 

ed.      1 S 7 4 .      j  v. 

'  Vangerow,  Karl  Adolph,     Leitfaden  fur  pandekten vorlesungen.     7th 
ed.     Marburg  and  Leipzig,  1863-69.     3  V. 
Brinz.     Lehrbuchder pandekten.     2ded.     [873-92.     .|  > 
Ibumann.    Handlexikon  zu  den  quellen  des  rdmischen   rechts     9th 
>il  ,  bj  Seckel.    Jena,  Fischer,  1007. 
1  Bruns-Gradenwitz.     Pontes  juris  mm, mi   antiqui.      7 1 1 1  ed.      Tubin- 
gen, Mohr,  1909.     2  v. 


56  GUIDE   TO   THE   LAW   OP  GERMANY 

GERMAN  CIVIL  CODE 

History  The  German   Civil   Code  is   the   crowning  achievement   in 

the  codification  of  German  private  law.  The  first  step  in 
the  direction  of  uniform  legislation  in  Germany  was  taken 
by  the  states  of  the  Zollverein.  Their  delegates  met  at 
Leipzig  in  1849  and  drew  up  a  uniform  Bills  of  Exchange  Act 
(Wechselordnung),  which  with  some  amendments  (the  Nurn- 
berg  Novels)  was  adopted  by  all  the  German  States.  The 
next  landmark  in  codification  was  erected  in  1861,  when 
the  Diet  of  the  German  Confederation  recommended  to  t In- 
states the  enactment  of  a  Commercial  Code,  drawn  up  by  a 
specially  appointed  commission.  The  legislative  authority 
of  the  North  German  Federation,  founded  in  1867,  was 
extended  to  include  criminal  law,  judicial  procedure,  con- 
tracts, bills  of  exchange  and  commercial  law.  On  this 
authority  the  Federation,  in  1869,  enacted  the  Bills  of  Ex- 
change Act  and  the  Commercial  Code  as  Federal  law.  In 
1871,  on  the  formation  of  the  Empire,  civil  and  criminal 
procedure  and  criminal  law  were  placed  within  the  legislative 
jurisdiction  of  the  Empire.  In  1871  a  Penal  Code  was  adopted, 
and  in  1877 — a  momentous  year  in  the  history  of  German 
codification — Federal  Codes  of  Civil  and  Criminal  Procedure 
and  a  Federal  Judiciary  Act  and  a  Bankruptcy  Act  were 
placed  on  the  statute  books.  The  names  of  G.  E.  W.  Leon- 
hardt,  Prussian  minister  of  justice  from  1867  to  1879,  and 
Edouard  Lasker,  are  prominently  associated  with  this  move- 
ment for  the  reform  of  German  law.  An  account  of  the 
legislation  which  the  various  codes  of  1877  superseded  is  con- 
tained in  a  series  of  articles  by  Dr.  Edward  Zimmerman, 
published  in  the  Law  Magazine  and  Review.1 

Lcjusiative      gv  (he  constitutional  amendment  of  December  20,   1871, 

histoiy  '  J 

to  article  4,  section  13  of  the 'Constitution  of  April  16,  1871, 

1  Law  Magazine  and   Review,   N.   S.  v.  3  (1874)  pp.  358-81,  pp.  640-44 
(should  be  654);  4th  series,  v.  1  (1876)  pp.  103-112. 


CIVIL    CODE  57 

the  legislative  power  of  the  Empire  was  extended  to  the 
sphere  of  the  entire  civil  law.  The  Bund*  srat  (Federal  Council) 
thereupon  appointed  a  commission  of  five  leading  jurists  to 

report  on  a  plan  and  method  for  undertaking  the  work  of 
cmist  met  in;;  a  Civil  Code.  The  suggestions  <>!"  this  com- 
mission were  approved  by  the  Bundesrat  and  on  the  2d  of  July 
1874,  they  appointed  another  commission  of  eleven  members 
under  tlie  presidency  of  Or.  Pape,  then  chief  justice  of  the 
OberhandelsgericlU  at  Leipzig.  Of  this  commission,  six  mem- 
bers were  judges,  three  were  officials  in  the  ministries  of  justice 
of  their  respective  States,  and  two  were  university  professors. 
The  common  law  or  '  received  "  Roman  law  found  its  represen- 
tatives in  Profs.  Windscheid,  Roth,  and  Planck  and  Messrs. 
Kiibel  and  Schmidt.  The  Prussian  Landrecht  was  repre- 
sented by  Messrs.  Pape,  Johow  and  Kurlbaum.  The  Punch 
law  in  its  original  form  and  in  the  guise  of  Baden  Landrecht 
was  represented  by  Messrs.  Derscheid  and  Gebhard,  and  the 
Saxon  law  by  Dr.  von  Weber.  The  work  of  the  commission 
was  divided  into  five  parts  corresponding  to  the  five  general 
divisions  of  the  present  code:  (1)  general  part,  including  tin- 
law  of  persons;  (2)  the  law  of  obligations;  (3)  the  law  of  things; 
141  family  law;  and  151  the  law  of  inheritance,  each  division 
being  assigned  to  a  committee.  The  work  in  committee  took 
seven  years,  until  1881,  and  from  that  time  until  1887  the 
commission  worked  in  committee  of  the  whole,  debating  the 
matter  for  six  years.  In  1887,  the)  reported  out  a  draft  of 
the  code  (Entwurf)  which,  with  their  report,  was  handed  to 
the  Imperial  chancellor  on   December  27,  1887. 

In    an    article  by     Prof.     Krnst     Freund    in    tin     American 

Law   Review,  volume  J4   (1890),  pages  2.V--.S4,  there  is  a 

scholarly  account  of  the  principles  which  governed  the  codifiers, 

the  contents  of  the  code,   tin-  material  excluded,   the  method 

if    work   and   the   difficulties  encountered,    together   with   a 


58         GUIDE  TO  THE  LAW  OF  GERMANY 

general  discussion  of  the  theory  of  codification.  In  the  course 
of  an  article  on  "State  statute  and  common  law,"  Prof.  Munroe 
Smith,  in  the  Political  Science  Quarterly,  volume  3  (1888), 
pages  155-160,  summarizes  the  history  of  codification  in 
Germany.  Dr.  Ernest  Schuster,  who  has  done  so  much  to 
familiarize  English  lawyers  with  German  civil  law,  pub- 
lished a  learned  article  in  the  Law  Quarterly  Review,  vol- 
ume 12  (1896),  pages  17-35,  dealing  with  the  history  of 
codification  and  especially  with  the  preparatorv  work  in  the 
formation  of  the  present  Civil  Code.  The  same  subject  is 
treated  in  an  interesting  article  by  Prof.  A.  Pearce  Higgins  in 
the  Journal  of  the  Society  of  Comparative  Legislation,  volume 
6,  new  series  (1905),  pages  95-105.  Prof.  Maitland  delivered 
a  presidential  address  to  the  Social  and  Political  Educational 
League  in  1906  entitled  "The  making  of  the  German  Civil 
Code,"  which  was  published  in  the  Independent  Review, 
August,  1906,  and  is  reprinted  in  his  Collected  papers,  recently 
edited  by  H.  A.  L.  Fisher,  in  volume  3,  pages  474-4S8.  In 
his  brilliant  way  and  in  popular  language  he  describes  the 
methods  by  which  the  code  was  enacted.  One  sentence  may 
be  quoted : 

Never  yet,  I  think,  has  so  much  first-rate  brain  power  been  put  into 

an  act  of  legislation. 

Most  interesting  details  of  the  work  of  the  first  commission 
are  given  by  Privy  Councillor  Dr.  Vierhaus  (then  a  judge  of 
the  Court  of  Appeal  in  Cassel)  in  his  EntstehungsgeschichU  d<  s 
entwurfes  eines  B.  G.  B.  [Biirgerliches  GesetzbucK\  fur  dm 
deutsche  reich  (Berlin,  Gutlentag,  1888).  The  protocols  of 
the  first  commission,  whose  labors  ended  in  1887,  occupy  over 
1  2,000  mimeograph  folio  pages;  they  were  never  published  for 
the  general  public.  The  draft  code  which  they  submitted 
was  published  officially  in  18S8  under  the  title  Entwurf  eines 
B.  G.  B.  jur  das  deutsche  nidi.  Erste  lesung.  Amtliche  aus- 
gabi    (Berlin,  Guttentag,   1888),  together  with  a  draft  of  the 


CIVIL   CODE  59 

Introductory  Act  entitled  Entwurj  eines  einfuhrungsgi  •  tei  s  fur 
das  /;.  G.  />'-  nebst  motiven  (Guttentag,  1888).  A  publica- 
tion of  great  value  for  an  understanding  of  the  history  of  the 
code  and  the  legislative  intentions  of  the  commission  are  five 
volumes  of  analyses  and  preliminary  materials  for  the  first 
draft  which  were  published  officially  at  the  same  time,  under 
the  title  Motive  zu  dem  entwwrfe  dries  B.G.  B.  fur  das  deutscht 
tilth,  Amtliche  ausgabe,  the  second  edition  of  which  was  pub- 
lished by  Guttentag  in  1897.  One  volume  is  devoted  to  each 
part  of  the  code.  An  index  to  the  draft  and  to  the  "  Motivt  n  " 
was  prepared  by  Dr.  Jatzow  in  1888.  These  volumes  consti- 
tute an  important  work  of  reference,  in  which  the  local  law 
on  the  subjects  embodied  in  the  code  may  be  found  concisely 
and  accurately  stated.  The  1888  draft  with  the  "Motiven" 
was  distributed  throughout  the  Empire.  The  object  was  to 
elicit  criticism,  as  is  stated  in  the  introduction  of  the  circular 
accompanying  the  draft.  The  statement  of  the  chancellor  of 
his  readiness  to  receive  and  entertain  all  communications 
relating  to  the  subject  brought  in  prolific  criticisms.  Those 
criticisms  which  made  their  appearance  up  to  November, 
[890,  were  officially  published  under  the  title  Zusammen 
stellung  der  gutachilichen  dusserungen  zu  dem  entwurfi  thus 
B.  G.  B.  1  Berlin,  Xorddeutsche  Buchdruckcrei,  1X1)0-91, 
6  vols.),  together  with  another  collection  of  criticisms  011  the 
Introductory  Act  entitled  Zusammenstellung  der  gutachi- 
lichen dusserungen  zu  dem  entwurfi  eines  einfiihrungsgesetzes 
.ii»i  B.  G.  B.  The  individual  governments  of  the  Empire 
also  complied  with  a  request  of  the  chancellor  of  June  27, 
1889,  to  submit  propositions  and  critical  opinions  on  the  first 
draft.  They  wen-  edited  in  the  !<•  ichsjustizamt  and  published 
under  the  title  Zusammenstellung  der  dusserungen  dei  bundes 
regierungen  :n  dem entwurfe eines  B.  G.  B.,  gefertigi  i»i  i<i<lis- 
justizamt  It  would  not  In-  proper  to  leave  this  matter  of  the 
critical  opinions  thus  elicited  without  referring  to  the  criticism 


60         GUIDE  TO  THE  LAW  OF  GERMANY 

of  Prof.  Gierke,  a  strong  believer  in  the  "social"  superiority  of 
German  over  Roman  legal  ideas.  His  criticism,  published 
under  the  title  Der  entwurf  eines  B.  G.  B.  u.  das  deutsche  recht 
(The  draft  of  a  civil  code  and  the  German  law),1  exercised  a 
greater  influence  on  the  second  draft  and  its  changes  than 
that  of  any  other  individual.  It  is  the  clearest  and  most 
eloquent  summary  of  the  various  objections  brought  against 
the  proposed  code,  and  is  a  most  readable  account  of  its 
leading  provisions  and  principles.  Prof.  Felix  Dahn,  in  an  arti- 
cle published  in  the  Juridical  Review,  volume  2  (1890),  pages 
15-26,  in  a  critical  discussion  deprecates  the  prevalence  of 
the  Roman  element  in  the  draft  at  the  expense  of  the  German. - 
A  second  commission  under  the  chairmanship  of  Prof. 
Planck  was  appointed  in  1892,  which  acted  on  the  bases  of 
the  first  draft,  account  being  taken  of  the  criticisms  that  had 
been  published.  They  reported  out  a  revised  draft  under 
the  title  Entwurf  virus  B.  G.  B.  fur  das  deutsche  reich.  Zweite 
testing.  Nach  den  beschlussen  der  redaktions-kommission. 
Auf  amtliche  veranlassung  (Berlin,  1895).  The  protocols 
of  this  commission,  which  covered  over  9,500  folio  pages, 
were  mimeographed,  as  were  those  of  the  first  commission, 
but  were  subsequently  edited  in  the  Reichsjustizamt  and 
published  in  seven  volumes  under  the  title  Protokolle  der 
horn-mission  fur  die  II.  lesung  des  cntwurfes  des  B.  G.  B. 
Im  aiijtragc  des  reichsjiisHzamtes  bearbeitct  von  Dr.  Achilles, 
Reichsgerichtsrath  a  D.,  Dr.  Spahn,  ft.  preuss.  kammerqerichts- 
rath,  Dr.  Gebhard,  grossh.  badischer  Geh.  Rath  (Berlin, 
Guttentag,  1897-1899).  The  draft  of  this  commission  was 
submitted  to  the  Bundesrat,  who  submitted   it  with  amend- 

1  Gierke,    O.     Der    entwurf  eines  B.  G.    B.  und  das  deutsche  recht. 

Leipzig,  Duncker  &  Humblot,  1889.     592  p. 

2  For  the  literature  concerning  the  criticisms  of  the  draft,  see  Gierke, 

Deutsches  privatrecht,  I,  p.  59.  note  27.  For  the  literature  concerning 
the  entire  draft  see  a  pamphlet  by  K.  F.  Reatz,  Die  litteratur  uber 
den  entwurf  eines  B.  G.  B.,  Leipzig,  Hinrichs,  1895. 


CTVIL    CODE  6 1 

mints,  together  with  an  Introductory  Act,  to  the  Reichstag 
under  the  title  Entwurf  ernes  B.  G.B.und  eines  zugehorigen 
E.  G.  sou/in  eines  gesetzes  betr.  aenderungen  des  gerichtsver- 
fassungsgesetzes,  der  C.  P.  <>.,  der  K.  0.  und  d,  >•  /•.'.  G.  zur 
C.  P.  0.  und  K.  0.  In  der  fassung  der  bundesrathsvorlagen. 
Auf  amtiiche  veranlassung.  Together  with  this  draft,  the 
Bundesrat  submitted  to  the  Reichstag  a  memorial  entitled 
Denkschrift  zum  entwurf  eines  B.  G.  B.,  with  three  appendices, 
which  was  published  officially  in  1896.  The  debates  of 
the  Bundesrat  on  the  draft  of  the  second  commission  were 
not  published.  Their  conclusions  may  be  gathered  from 
the  differences  which  appear  between  the  third  draft  1//;. 
Reichstagsvorlage),  which  they  submitted  to  the  Reichstag, 
as  compared  with  the  second  draft.  The  report  of  the 
committee  of  the  Reichstag  which  considered  tin-  draft, 
was  published  under  the  title  Bericht  der  reichstagskommis- 
sion  uber  den  entwurf  rims-  B.  G.  B.  und  eitu  >  /:\  G.  nt  />>/  einer 
zusammenstellung  der  kommissionbi  rchlusse.  Berichterstatter: 
,>id)i<te  Dr.  Enneccerus,  Dr.  v.  Buchka,  Dr.  Bachem, 
Dr.  Schroder  (Berlin,  1896).  The  debates  of  the  Reichstag 
on  the  draft  submitted  by  the  Bundesrat  wire  published  in 
the  regular  Drucksachen  und  ttenographischen  berichte  des 
reichstags,  <>.  Legislaturperiode,  4.  Session  181)5-1896,  and 
appeared  separately  in  the  book  trade  under  the  title  Erste, 
zweile  und  dritu-  berathung  des  entwurfes  <  in,  s  B.  G.  B.  im 
reichstag,  stenographische  berichte  (Berlin,  1896).  The  final 
draft  was  published  under  the  title  Entwurf e zum  B.  G.  B.  und 
einfuhrungsgeseh  in  der  fassung  der  votn  reichstag  gemachien 
vorlage  (Berlin,  Guttentag,  1896),  and  an  index  published 
by  Heyinann  the  same  year.  A  private  publication  which 
is  valuable  as  an  abridged  edition  of  the  essentials  of  the 
legislative  antecedents  of  the  code  is  that  edited  by  Mug 
dan,1    in    six    volumes,    including    the    index.      It    reports    the 

1  Mugdan,  B.     Die  gesammten   materialien   zum   Burgerlichen   v;isrt/- 
Imi-li  fur  «I;is  Deutsche  Reich.     Berlin,  R.  v.  Decker,  1899.    6  v. 


62  GUIDE    TO   THE    LAW   OF   GERMANY 

"motives/'  the  draft,  the  protocols,  the  parliamentary  reports 
and  discussions,  and  gives  the  legislative  antecedents  of 
the  various  sections  of  the  code.  Beginning  with  the  draft 
of  the  first  commission,  it  follows  each  section  through  its 
legislative  career  in  the  form  of  a  table.  The  code  with 
its  introductory  statute  was  adopted  August  18,  1896,  and 
came  into  force  on  January  1,  1900. 
Contents  The  German  Civil  Code  is  divided  into  five  books,  together 

with   an    Introductory  Act   which  prepares   the  way  lor  the 
general    application    of    the   code    provisions. 

Book  I  of  the  Civil  Code  deals  generally  with  the  law  of 
persons  and   is  divided   into  seven  sections. 

Section  1  deals  with  persons,  including  natural  persons 
and  juristic  persons.  Juristic  persons  are  dealt  with  under 
three  headings:  associations  in  general,  registered  and  un- 
registered, including  corporations,  partnerships  and  unin- 
corporated societies;  foundations  or  endowments;  and  juristic 
persons  in  public  law. 

The  second  section  deals  with  the  various  kinds  of  things, 
consumable  and  permanent,  fixtures  and  appurtenances, 
fruits  and  usufruct. 

The  third  section  deals  with  juristic  acts  and  includes 
capacity,  the  effect  of  declarations  of  intention  or  expression 
of  will,  contracts,  conditions  and  limitations  of  time,  repre- 
sentation and  agency  in  general,  including  ratification. 

The  fourth  section  deals  with  periods  of  time  and  the  manner 
in  which  they  are  to  be  calculated.  Section  5  deals  with  pre- 
scription and  statutes  of  limitation  in  different  kinds  of 
actions.  Section  6  deals  with  the  exercise  of  rights,  self- 
defense  and  self-help;  section  7,  with  security  and  bail. 

Book  II  deals  generally  with  the  law  of  obligations,  and 
is  divided  into  seven  sections. 


civil  com:  63 

Section  1  deals  with  the  scope  of  obligations,  the  requirement 
to  perform  contracts  and  the  effect  of  a  breach,  and  in  general 
with  the  relation  between  debtor  and  creditor,  including  the 
rules  concerning  damages. 

Section  2  deals  with  obligations  ex  contractu  and  con- 
cerns especially  the  creation  of  a  contract  and  its  content. 
One  division  is  devoted  to  the  effect  of  a  mutual  or  bilateral 
contract,  and  another  to  the  effect  of  a  promise  to  perform 
in  favor  of  a  third  party.  The  second  section  also  deals  with 
earnest  money  and  the  penalties  fixed  by  the  contract  for  a 
breach.  The  last  part  of  the  section  covers  the  withdrawal 
of   parties   under   the   contract. 

Section  3  deals  with  extinction  or  cancellation  of  obliga- 
tions, or  what  we  would  call  the  performance  of  contracts. 
In  this  section  are  discussed  such  subjects  as  pledge,  at- 
tachment, set-off  and  release. 

Section  4  deals  with  the  assignment  or  transfer  of  claims; 
section  5  with  the  assumption  of  debt  or  novation;  section  6 
with  the  plurality  of  debtors  and  creditors,  such  as  joint 
debtors  and  creditors  and  the  divisibility  and  indivisibility  of 
performance. 

Section  7  deals  with  particular  kinds  of  contracts  and  is 
divided  into  25  titles.  The  first  title  deals  generally  with 
purchase  and  sale  and  exchange.  The  second  title  deals  with 
gifts  and  their  conditions.  Title  3  deals  with  leases,  rents, 
and  the  general  relations  existing  between  landlord  and 
tenant.  The  next  few  titles  in  their  order  deal  with  certain 
bailments,  loans  for  use,  loans  for  consumption,  contracts 
for  service,  and  for  work.  Title  8  deals  with  brokerage;  title 
9,  with  tile  promise  of  reward.  Titles  10  to  [3,  inclusive, 
deal  with  the  following  bailments:  Mandate,  unauthorized 
management  of  others'  affairs,  custody  of  movable  things  on 
deposit,  and  the  liability  of  innkeepers.  Tin-  fourteenth  title 
deals  with  general   partnership   relations,  although    book   II 


64  GUIDE   TO   THE    LAW   OF   GERMANY 

of  the  Commercial  Code  deals  with  the  special  rules  concerning 
commercial  partnerships.  Title  15  deals  with  the  community 
of  ownership;  title  16  with  annuities.  Title  17  deals  with 
gaming  contracts.  Suretyship  is  covered  in  title  18.  Title 
19  concerns  compromise;  title  20,  the  acknowledgment  of  and 
the  promise  to  pay  debts.  Title  21  deals  with  orders  and 
drafts;  title  22  with  obligations  to  bearer.  Title  23  concerns 
discovery  and  the  production  of  chattels  and  instruments 
on  demand.  Title  24  deals  with  unjust  enrichment,  and 
title  25  with  certain  torts  and  tort  liability. 

Rook  III  deals  with  the  law  of  things  and  covers  largely  the 
law  of  real  property.     It  is  divided  into  nine  sections. 

Section  1  deals  with  possession,  its  acquisition  and  its  loss 
and  the  various  kinds  of  possession. 

Section  2  deals  with  general  provisions  relating  to  rights 
over  land,  their  acquisition,  loss  and  alteration,  together  with 
certain  provisions  concerning  the  operation  of  the  Land 
Registry  Act. 

Section  3  deals  with  the  general  subject  of  ownership  and  is 
divided  into  five  titles.  Title  1  deals  with  the  scope  of  owner- 
ship and  includes  the  rights  of  adjoining  owners  of  land,  rights 
of  way  and  boundaries.  Title  2  deals  with  the  acquisition 
and  loss  of  ownership  in  land  and  title  3  with  the  acquisition 
and  loss  of  ownership  of  movables.  Title  3  is  subdivided  into 
six  heads;  the  first  deals  with  the  transfer  of  ownership  of 
movables,  the  second  with  usucaption  and  ownership  by  pre- 
scription, the  third  with  mingling  of  goods,  confusion  and 
specification,  the  fourth  with  the  acquisition  of  products  and 
other  component  parts  of  a  thing,  the  fifth  with  appropriation, 
which  includes  abandonment  of  things,  especially  animals, 
and  the  sixth  with  finding  and  the  rights  of  the  finder.  Title 
4  of  the  third  section  deals  with  the  rights  and  duties  arising 
out  of  ownership.     Title  5  deals  with  co-ownership. 


CIVIL   CODE  65 

Section  4  deals  with  heritable  building  rights  (Erbbaurecht). 

Section  5  deals  wit  li  servitudes  and  is  divided  into  three  titles. 
The  first  covers  the  law  of  real  servitudes,  the  second  usufruct, 
which  is  divided  into  the  usufruct  of  things,  the  usufruct  of 
rights  and  the  usufruct  of  a  person's  whole  property.  The 
third  title  deals  with  limited  personal  servitudes. 

Section  6  deals  with  the  real  right  of  preemption  (Vorkaufs- 
recht);  section  7  with  perpetual  charges  on  land;  and  section 
8  with  mortgage,  land  charges  and  annuity  charges. 

Section  9  deals  with  the  pledge  of  movables  and  pledge  of 
rights. 

Book  IV  on  family  law  is  divided  into  three  broad  sections: 
First,  civil  marriage;  second,  relationship;  third,  guardianship. 

Section  1  is  divided  into  eight  titles.  The  first  deals  with  the 
rights  and  duties  growing  out  of  betrothal ;  the  second  with  the 
consummation  of  the  marriage  and  with  marital  rights.  The 
third  deals  with  voidable  and  void  marriages.  The  fourth 
deals  with  remarriage  in  case  one  of  the  spouses  is  declared 
legally  dead.  The  fifth  deals  with  the  effects  of  the  marriage 
relation  in  general.  The  sixth  deals  with  matrimonial  rights 
over  property.  This  sixth  title  is  subdivided  into  three  parts; 
the  first  deals  with  the  statutory  regime  over  the  matrimonial 
property,  and  includes,  besides  general  provisions,  the  rights  of 
management  and  use,  the  liability  for  debts,  and  the  manage- 
ment of  separate  property.  Part  2  deals  with  the  contractual 
regime  or  the  property  rights  resulting  out  of  the  marriage 
contract.  Besides  its  general  provisions  it  deals  with  the 
general  community  of  goods,  the  community  of  income  and 
profits  and  the  community  of  movables.  Part  3  deals  with 
the  marriage  property  register.  Title  7  of  this  first  section 
deals  with  the  dissolution  of  marriage  and  divorce;  title  8 
provides  that  obligations  to  the  church  remain  unaffected 
by  the  code. 

29774°—" 5 


66         GUIDE  TO  THE  LAW  OF  GERMANY 

The  second  section,  dealing  with  relationship,  covers  eight 
titles.  The  first  deals  with  general  provisions;  the  second, 
with  legitimate  descent ;  the  third,  with  the  duty  of  mainte- 
nance of  relatives ;  the  fourth,  with  the  legal  status  of  legitimate 
children  and  the  relations  of  parent  and  child.  Title  5  deals 
with  the  legal  status  of  children  born  of  void  marriages;  the 
sixth  with  the  legal  status  of  illegitimate  children.  Title  7  is 
concerned  with  the  legitimation  of  illegitimate  children  and 
title  8  with  adoption. 

The  third  section  deals  with  guardianship  and  is  divided 
into  three  titles.  The  first,  guardianship  over  minors,  the 
second,  guardianship  over  persons  of  full  age,  and  the  third, 
curatorship.  The  first  title  is  the  most  important  of  these  and 
deals  with  the  establishment,  conduct,  responsibility,  super- 
vision and  termination  of  guardianship. 

Book  V  deals  with  the  law  of  inheritance  and  is  divided 
into  nine  sections.  The  first  section  deals  with  the  order  of 
succession  of  heirs.  The  second  section  deals  with  the  legal 
status  of  an  heir  and  is  subdivided  into  four  titles.  The  first 
deals  with  the  acceptance  and  renunciation  of  the  inheritance 
and  the  supervision  of  the  probate  court.  The  second  title 
deals  with  the  liability  of  an  heir  for  the  obligations  and  debts 
of  the  estate,  and  includes  among  other  things,  the  procedure 
for  fixing  the  liability  and  establishing  the  amount  of  the 
estate.  The  third  title  deals  with  claims  to  the  inheritance 
on  the  part  of  the  heir.  Title  4  deals  with  the  plurality  of 
heirs  and  the  legal  relations  between  the  heirs  and  the  creditors 
of  the  estate. 

The  third  section  deals  with  the  written  will  or  testament 
and  is  subdivided  into  eight  titles.  These  cover  the  following 
subjects :  General  provisions,  appointment  of  the  heir,  appoint- 
ment of  the  reversionary  heir,  bequests  and  legacies,  testa- 
mentary charges  and  burdens,  executors,  execution  and  revo- 
cation of  a  will,  and  joint  and  mutual  wills. 


CIVIL  CODE  67 

The  fourth  section  of  Book  V  deals  with  the  contract  of 
inheritance;  the  fifth,  with  compulsory  portion;  the  sixth,  with 
unworthiness  to  inherit,  or  disqualification  to  become  an  heir; 
the  seventh,  with  renunciation  of  the  inheritance;  the  eighth, 
with  certificate  of  inheritance;  and  the  ninth,  with  the  pur- 
chase of  the  inheritance. 

The  Introductory  Act  is  extremely  important  and  is  divided    Introduc- 

r  tory  Act 

into  four  sections:  First,  general  provisions;  second,  the  rela- 
tion of  the  Civil  Code  to  the  laws  of  the  Empire;  third,  the 
relation  of  the  code  to  the  laws  of  the  States;  fourth,  transitory 
provisions.  In  some  matters  the  existing  imperial  law  has 
been  retained,  as,  for  example,  commercial  law  (with  slight 
modifications  necessitated  by  the  new  Civil  Code),  the  law  of 
patents,  copyright,  insurance,  and  other  matters.  Rights  of 
legislation  in  a  number  of  matters  have  been  left  to  the  States, 
the  farmer's  and  the  peasant's  position  in  relation  to  land 
having  been  altered  as  little  as  possible.  Furthermore,  the 
rules  relating  to  mines  and  minerals,  the  right  of  eminent 
domain,  manorial  rights,  and  partition  of  common  lands,  and 
other  matters  are  left  to  State  legislation.  Besides  this,  a 
number  of  local  customs  identified  with  towns  and  communities 
since  time  immemorial  are  left  unaffected  by  the  code.  These 
include  certain  regulations  concerning  family  settlements,  feudal 
tenures,  restrictions  as  to  the  subdivision  of  agricultural  and 
forest  land,  the  use  of  streams  and  water  courses,  game  laws, 
certain  customs  as  to  leases  and  certain  rules  as  to  domestic 
servants.' 

In  order  to  harmonize  the  local  law  with  the  new  imperial 
law,  to  furnish  the  transition  between  the  old  and  the 
new  law,  and  at  the  same  time  to  regulate  the  matters  left 
to  State  legislation,  all  the  States  of  the  Empire  enacted 
what    they   called    "  iusfuhrungsgesetze"   to   the  Civil   Code. 

1  For  the  subjects  excluded  from  the  code  see  Gierke  ''Deutsches  pri- 
vatrccht,  "  I.  p.  59. 


68         GUIDE  TO  THE  LAW  OF  GERMANY 

The  subjects  which  have  been  left  to  the  jurisdiction  of  the 

States  are  in  these  laws  largely  recodified  and  the  repealed 

matter  cleared  away.     These  State  laws  have  been  collected 

in  two  large  volumes  and  two  supplements  by  Dr.  H.  Becher  ] 

and  are  published  at  Munich. 

Schuster  makes  the  following  pertinent  suggestion  to  the 

investigator  of  German  law : 

In  order  to  find  out  the  law  on  any  given  point,  it  is  not  sufficient  to 
refer  to  the  provisions  of  the  Civil  Code  and  Commercial  Code,  or  of 
any  other  imperial  statute  that  may  be  applicable  to  the  matter  in  hand, 
but  in  each  case  it  must  be  ascertained  (i)  whether  the  subject  of  the 
inquiry-  is  one  on  which  the  State  law.  including  the  Ausfiihrungsgesetz 
of    the     particular    State,     contains    any    supplementary    provisions, 

(2)  whether  any  imperial  customary  law  affects  the  particular  subject; 

(3)  whether,  in  the  event  of  the  subject  being  one  which  may  be  affected 
by  State  law,  any  local  customary  law  relating  thereto  is  in  existence. 

These  circumstances  alone  make  it  clear  that  the  Civil  Code  did  not 
either  in  intention  or  in  effect,  reduce  the  whole  of  German  law  into 
one  compact  mass. 

Sections    7    to    31    of    the    Introductory  Act   contain    the 

important  rules  on  the  conflict  of  laws.     They  are  somewhat 

affected  by  the  Hague  conferences  on  private  international 

law,  especially  that  of  June  12,   1902.     These  articles  cover 

the    questions   of   capacity,    corporations    and    partnerships, 

form,    torts,   marriage   and   divorce,    succession   and   general 

rules  as  to  the  application  of  local  and  foreign  law.     Articles 

27  and  28  deal  with  the  question  of  "renvoi"  which  has  been 

so  excellently  discussed   by  Prof.   Lorenzen  in   two  notable 

articles  in  the  Columbia  Law  Review,  March  and  April,  1910. 

An  explanatory  article  on  the  private  international  law  of 

the  German  Civil  Code  was  published  by  Prof.  Lorenzen  in 

volume  1   (1908)  of  the  Annual  Bulletin  of  the  Comparative 

Law  Bureau,  pages  36-41.     An  article  by  Julius  Hirschfield 

published  in  the  Law  Quarterly  Review,  volume  16  (1900), 

1  Becher,  Heinrich.  Die  ausfiihrungsgesetze  zum  Biirgerlichen  gesetz- 
buche  .  .  .  Miinchen,  J.  Schweitzer,  1901.  2  v.  and  Sup- 
plements.    Supplement  two  is  in  2  parts,  191 1. 


CIVIL    CODE  69 

pages  88-91,   presents  a  summary  of  sections  7-31    of  the 
Introductory  Act. 

In  addition,  several  noteworthy  monographs  on  the  private 
international  law  of  the  Civil  Code,  discussing  these  sections, 
have  been  published.  One  of  the  most  important  of  these  is 
by  Prof.  Xiemeyer '  of  Kiel,  editor  of  the  Zeitschrijl  jur 
internationales  recht.  It  is  a  scholarly  treatise  and  discusses 
the  subject  as  connected  with  and  apart  from  the  Civil  Code. 
An  intrusting  history  of  the  origin  of  the  private  interna- 
tional law  of  the  code  is  presented  in  the  first  few  pages. 
Another  important  work  is  that  by  Dr.  Habicht,2  judge  and 
councillor  in  the  ministry  of  justice,  edited  after  his  death  by 
Max  Greiff.  Account  is  taken  of  the  Hague  convention  of 
June  12,  1902,  and  there  are  copious  references  to  authorita- 
tive literature.  It  appears  in  the  form  of  a  commentary, 
discussing  the  rules  section  by  section,  as  they  appear  in  the 
Introductorv  Act  Aunt  her  important  treatise  on  the  subject 
was  published  by  the  late  Prof.  Barazetti,3  of  Heidelberg;  he 
undertakes  a  critical  discussion  of  that  part  of  the  Introductory 
act.  Prof.  Zitelmann '  presents  the  provisions  of  articles  7-31 
in  a  very  original  form.  In  eight  columns  he  shows  the 
gradual  development  of  each  of  these  articles  from  the  first 
preliminary  draft  of  the  first  commission,  through  its  fate  in 
the-  second  commission  and  the  other  drafts,  its  discussions 
in  fhe  lower  house  and  finally  as  an  adopted  law. 

1  Nieracycr,  Theodor.     Das  internationale  privatrecht  des  Biirgerlichen 

geselzbuchs.      Berlin,  J.  Guttentag,  1901.     222  p. 

2  Habicht,    Hermann.      Internationales   privatrecht   nach   dem    Kinfiih- 

rungsgesctze  zum   Biirgerlichen  gesctzbuchc.     Aus  dem  nachlasse 
hrsg.  von.  .Max  C.rcilT.      Berlin,  J.  (jUttcntag,  1907.     254  p. 

3  Bara/ctii,  Caesar.      Das  internationale   privatrecht    im    Biirgerlichen 

gesetzbuche  fur  das  Deutsche  Reich.      Hannover,  Helwing,   1897. 

"3  P- 
'Zitelmann,    Ivrust  .   .   .   Artikel   7   bis  ji   des  einfiihrungsgesetzes  zum 
Biirgerlichen  gesetzbuci  fur  das  Deutsche  Reich.     Leipzig,  Duncker 
&  Humblot,  1908.     49  p. 


70  GUIDE   TO   THE   LAW   OF   GERMANY 

General  Lit-      Tjr    Ernest  J.  Schuster,  in  the  Journal  of  the  Society  of 

erature 

Comparative  Legislation,  volume  i  (1896-1897),  pages  191- 
2ii,  analyzed  the  various  parts  of  the  code  and  gave  a 
descriptive  sketch  of  its  important  sections.  An  able  article 
by  Prof.  Ernst  Freund  which  was  published  in  the  Harvard 
Law  Review,  volume  13  (1900),  pages  627-637,  gives  a 
history  of  the  drafting  of  the  code  up  to  its  final  adoption, 
together  with  a  general  survey  of  its  system.  Two  longer 
articles  by  W.  W.  Smithers,  the  editor  of  the  Comparative 
Law  Bulletin,  which  were  published  in  the  American  Law 
Register,  volume  50  (1902),  pages  685-717;  volume  51  (1903), 
pages  14-32,  contain  an  historical  account  of  the  political 
and  legal  conditions  prevailing  in  Germany  from  the  Leges 
Barbarorum  until  the  present  Civil  Code,  the  method  of  con- 
struction of  which  is  described.  The  second  of  these  articles 
is  an  analysis  of  the  contents  of  the  five  books  of  the  code. 
In  the  American  Law  Review,  volume  35  (1901),  pages 
190—213,  Adolph  Eichholz  published  a  critical  article  explain- 
ing special  points  in  the  code,  of  interest  to  American  lawyers. 
Prof.  F.  P.  Walton  of  Montreal,  in  the  Juridical  Review, 
volume  16  (1904),  pages  148-168  (reprinted  in  the  Canadian 
Law  Review,  vol.  4,  1904,  pp.  372-388),  undertakes  a  critical 
survey  of  certain  parts  of  the  code,  especially  the  sections 
dealing  with  marriage  and  divorce,  matrimonial  property  and 
parts  of  the  law  of  obligations. 

The  enactment  of  the  Civil  Code  necessitated  as  well  the 
enactment  or  amendment  of  other  laws,  of  which  the  following 
are  the  most  important :  the  Land  Registry  Act  (Reichsgrund- 
buchordnung)  of  March  24,  1897;  the  law  concerning  execu- 
tions against  real  property  (Gesetz  iiber  die  Zwangsversteigcvung 
und  Zwangsverwaltang)  of  March  27,  1897;  the  law  concerning 
noncontentious  jurisdiction  (Reichsgesetz  iiber  die  Angelegen- 
heiten  der  jreiwilligen  Gerichisbarkcit)  of  May  17,  1898,  and 
certain  changes  in  the  Codes  of  Civil  and  Criminal  Procedure, 


CIVIL    CODE  71 

and  in  the  Judiciary  and  Bankruptcy  Acts,  which  were  pub- 
lished in  their  amended  form  in  1898. 

The  new  code,  in  force  on  January  1,  1900,  necessitated 
renewed  study  on  the  part  of  the  practicing  lawyers  of  the 
time.  In  order  to  introduce  them  to  the  new  code,  from  the 
standpoint  of  the  then  existing  law,  several  works  were  pub- 
lished treating  the  subject  from  the  comparative  point  of  view. 
The  firm  of  Otto  Liebmann  in  Berlin  undertook  to  facilitate 
the  transition  from  the  old  to  the  new  law  in  a  series  entitled 
"  Vergleichende  DarsteUwng" ?  Three  volumes  were  published 
in  the  series,  one  by  Buchka,-  comparing  the  common  law  (the 
"received"  Roman  law)  with  the  new  code;  one  by  Dr.  Franz 
Leske,3  the  talented  editor  of  the  well-known  work  Rcchtsver- 
jolgnng  im  international!,  n  verkehr,  comparing  the  Prussian 
Landrechi  with  the  new  code;  and  one  by  Judge  R.  Fortsch  * 
of  the  imperial  supreme  court,  who  compared  the  Civil  Code 
of  France  with  the  new  German  Civil  Code.  A  useful  book 
is  that  by  Dr.  Habicht 5  on  the  influence  of  the  new  code  upon 
preexisting  legal  conditions.  A  similar  work  was  published  by 
Dr.  Kuhlenbeck;6  it  aims  to  furnish  the  transition  between  the 

1  Vergleichende  darstellung  des  Biirgerlichen  gesetzbuches  fur  das 
Deutsche  Reich  und  dcr  landesrechte.  Berlin,  O.  Liebmann, 
1899-1903. 

•  Buchka,  Gerhard.     Vergleichende  darstellung  des  Biirgerlichen  gesetz- 

buches fiir  das  Deutsche  Reich  und  des  gemeinen  rechts.    3d  ed. 
Berlin,  O.  Liebmann,  1899.     535  p. 
3  Leske,  Franz.     Vergleichende   darstellung   des    Biirgerlichen   gesetz- 
buches fur  das  Deutsche  Reich  und  des  Preussischen  allgemeinen 
landrechts.     1st  and  2d  ed.  Berlin.  O.  Liebmann,  1900-1903.     2  v. 

*  Fortsch,  R.     Vergleichende  darstellung  des  Code  civil  und  des  Iiur- 

gerlichen  gesetzbuches  fiir  das   Deutsche   Reich.     2d   ed.   Berlin, 

O.  Liebmann,  1899.     370  p. 
5  Habicht,  H.     Die  ein wirkung  des  Biirgerlichen  gesetzbuches  auf  zuvor 

entstandene    rechtsverh&ltnisse.     3d    ed.   Jena,    G.    Fischer,    1901. 

817  p. 
8  Kuhlenbeck,  L.     Von  den  pandekten  zum  Biirgerlichen  gesetzbuch. 

Berlin,  Heymann,  1898.     587  p. 


72  GUIDE  TO   THE   LAW   OF   GERMANY 

common  law  {Pandckten)  and  the  new  code.  Ernst  Barre  ' 
also  wrote  a  book  comparing  the  German  and  the  French 
Civil  Codes.  It  was  published  in  both  languages.  A  work 
by  Paul  Posener  2  treating  of  the  relation  between  imperial 
and  State  law,  while  not  especially  valuable,  does  cover  a 
very  difficult  part  of  the  Introductory  Act. 

The  literature  of  the  Civil  Code  is  contained  in  the  bibliog- 
raphies mentioned  at  the  beginning  of  this  Guide.  Those  by 
Dr.  Maas  are  of  much  value,  especially  a  pamphlet  presenting 
the  official  literature  of  the  subject.3  The  bibliographies 
appearing  in  the  Archiv  fur  biirgerliches  recht  since  volume  16 
are  important. 

The  Civil  Code  itself  has  received  extensive  treatment  in 
the  English  language.  Two  translations  of  the  code  have  been 
published  and  one  very  important  treatise.  The  treatise  of 
Dr.  Ernest  J.  Schuster4  on  The  principles  of  German  civil  law 
is  unquestionably  the  ablest  presentation  of  German  civil  law 
that  has  appeared  in  the  English  language.  Occasional  com- 
parison with  principles  of  English  law  and  practical  illustra- 
tions add  to  the  value  of  this  indispensable  work.  There  are 
two  English  translations  of  the  code;  one  by  Chung  Hui 
Wang,5  published  in  London  in  1907,  and  the  other  by  Walter 
Loewy,6  published  by  the  Boston  Book  Co.  in  1909.     Wang's 

1  Barre,  Ernst.     Le  code  civil  allemand  et  le  code  civil  francais  compares 

entre  eux.     2d  ed.  tr.  by  Jacques  Hartmann.     Berlin,  C.  Heymann, 
1899.     270  p.  (published  in  German  in  1897). 

2  Posener,  Paul.     Das  deutsche  reichsrecht  in  verhaltnisse  zum  landes- 

recht.     Breslau,  M.  &  H.  Marcus,  1900.     165  p. 

3  Maas,    F.     Bibliographic    der   amtlichen    materialien   zum    B.  G.   B. 

Berlin,  Guttentag,  1897.     35  p. 

4  Schuster,    Ernest  J.     The  principles  of  German   civil   law.     Oxford, 

The  Clarendon  Press,  1907.     684  p. 

5  Wang,    Chung   Hui.     The   German   civil   code,    translated  and  anno- 

tated.    London,  Stevens  &  Sons,  1907.     631  p. 

6  Loewv,  Walter.     The  civil  code  of  the  German  Empire  as  enacted  on 

August   18,    1896,    with  the   introductory  statute.      Translated   by 
Walter  Loewy.     Boston,  The  Boston  Book  Co.,  1909.     689  p. 


civil  codr  73 

edition  appears  to  be  slightly  the  better.  These  works  all 
contain  historical  introductions.  Gareis'  Science  of  law  (see 
footnote,  p.  22)  must  not  fail  of  mention  in  this  connection, 
as  it  presents  in  systematic  outline  a  brief  description  of  the 
principal  divisionsof  German  private  law.  TheComiiSde  Legis- 
lation Etrangkre  of  Paris,  whose  potential  activities  have  been 
greatly  increased  by  the  French  law  of  July  21,  1 910,  undertook 
in  1900  an  excellent  three  volume  translation  into  French  of  the 
German  Civil  Code.1  The  translation,  which  was  made  by  seven 
distinguished  professors  and  advocates,  is  accompanied  by  an 
exhaustive  commentary  with  critical  notes.  Its  publication 
was  anticipated  by  one  of  the  translators,  the  talented  Prof. 
Saleilles,  of  Paris,  who  in  a  small  monograph  entitled  "An 
introduction  to  the  study  of  German  civil  law,"  -  gives  an  ex- 
cellent historical  account  of  the  new  code  and  the  legal  con- 
ditions prevailing  in  Germany.  There  are  other  French  trans- 
lations of  less  importance. 

German  editions  of  the  Civil  Code  vary  in  size  and  in  manner 
of  treatment.  A  handy  edition  is  the  one  volume  work 
by  Drs.  Fischer  and  Henle,3  the  eighth  edition  of  which  ap- 
peared in  1909.  A  somewhat  larger  edition,  in  three  volumes, 
very  popular  among  German  lawyers,  is  that  by  Hugo  Neu- 
mann,' the  fifth  edition  of  which  likewise  appeared  in  1909. 
Both  of  these  editions  contain  short  annotations. 

Attention  has  already  been  called  to  the  distinction  made 
by  Germans  between  the  "kommentar"  (commentary),  the 
"Ichrbuch"  (treatise)  and  the  "handbuch."     Exhaustive  edi- 

1  Code  civil  allemand  prumulgue  le  18  aoftt   1896,  entr6  en  vigueur  le 

iw  Janvier  1900  .  .  .  Paris,  l'lmprimerie  nationale,  1904-1908.    3  V. 

2  Saleilles,  Raymond.     Introduction  a  I 'etude  du  droit  civil  allemand 

.  .  .  Paris,  F.  Pichon,  1904.     124  p. 

3  Fischer  und  Henle.      Bfirgerliches  gesetzbuch   vom    18.  august    1896 

nebst  dem  Einfuhrungsgesetze.  hrsg,  von  Dr.  Otto  Fischer  .  .  .  und 
Dr.  Wilhelm  von  Henle  .  .  .  8lh  ed.,  Miinchen,  C.  H.  Beck,  1909. 
*  Neumann,    Hugo.     Handausgabe   des    B.    G.    B.     5th    ed.,     Berlin, 
Vahlen,  1909.    3  v. 


74  GUIDE   TO   THE   LAW   OF   GERMANY 

tions  of  the  German  Civil  Code  appear  in  the  form  of  com- 
mentaries and  treatises.  The  leading  commentary  on  the 
Civil  Code  is  that  edited  by  the  late  Prof.  Planck  '  of  Gott- 
ingen,  with  the  assistance  of  other  authorities.  Prof.  Planck 
was  the  chairman  of  the  committee  on  family  law  in  the  com- 
mission which  drew  up  the  first  draft  of  the  Code,  and  the 
general  chairman  of  the  entire  second  commission.  He  was 
responsible  for  many  of  the  technical  changes  made  in  the 
second  draft.  Another  leading  commentary  used  with 
especial  favor  in  South  Germany  is  that  edited  by  Prof.  J. 
von  Staudinger 2  with  the  assistance  of  other  able  lawyers  and 
professors,  the  fifth  to  sixth  edition  of  which  has  just  been 
completed  (191 1)  in  six  volumes.  A  commentary  on  the  Civil 
Code,3  in  two  volumes,  edited  by  a  committee  of  supreme 
court  judges,  has  just  come  from  the  press.  It  annotates  the 
code,  with  especial  emphasis  on  supreme  court  decisions. 

The  treatises  on  German  civil  law  are  many  in  number, 
most  of  them  scholarly  works  of  the  highest  value.  One  of 
the  most  important  is  that  by  Prof.  Endemann,4  of  Heidel- 
berg, the  ninth  edition  of  which  appeared  in  1903-1908.  The 
entire  civil  law  of  the  Empire  is  presented,  not  merely  as  a 

1  Planck,  G.     Biirgerliches  gesetzbuch  nebst  Einftihrungsgesetz,  Erlau- 

tert  von  Dr.  G.  Planck,  in  vcrbindung  mit  Dr.  A.  Achilles  .  .  .  Dr. 
F.  Andre  .  .  .  M.  Greiff  .  .  .  F.  Ritgen  .  .  .  O.  Strecker  .  .  . 
Dr.  E.  Strohal  ...  Dr.  K.  Unzner  ...  3d  ed.  Berlin,  J.  Gut- 
tentag,  1903-1908.     7  v. 

2  Staudinger,  J.  von.     Kommentar  zum  burgerlichen  gesetzbuch  und 

dern  Einfiihrungsgesetze;  Hrsg.  von  Theodor  Loewenfeld,  Philipp 
Mayring,  Theodor  Engelmann,  Erwin  Riezler,  Karl  Kober,  Felix 
Heizfolderund  Joseph  Wagner.  5th  and  6th  ed.  Munchen,  1909-1911. 
6  v.  in  7.  On  Staudinger 's  Kommentar  see  an  article  in  the  Juris- 
tisches  Literaturblatt,  XXIV,  January  15,  1912,  pp.  3-4. 

3  Das  biirgerliche  gesetzbuch  mit  besonderer  beriicksichtigung  der  recht- 

sprechung  des  reichsgerichts,  erlautert  von  G.  Hoffmann,  etc  .  .  . 
Nurnberg  &  Leipzig.  U.  E.  Sebald,  1910.  2  v.  Called  also  Kom- 
mentar von  Reichsgerichtsraten. 

4  Endemann,  Friedrich.     Lehrbuch  des  burgerlichen  rechts.     9th  ed. 

Berlin,  C.  Heymanns  verlag,  1903-1908.     2  v.  in  3. 


civil  code  75 

Civil  Code  but  in  its  relation  to  the  laws  of  the  States.  Fam- 
ily law  is  the  last  subject  treated,  the  law  of  inheritance  being 
omitted.  Ludwig  Enneecerus,1  professor  at  Marburg,  with  the 
cooperation  of  Profs.  Kipp  and  Wolff,  has  published  one  of  the 
most  learned  treatises  on  the  subject.  The  first  volume  of 
the  fifth  edition  was  issued  in  1909,  two  volumes  having  been 
published  up  to  the  present  time.  The  great  demand  for  this 
work  has  caused  the  publishers  (January,  1912)  to  bring  out 
the  first  volume  in  a  sixth-eighth  edition.  We  may  say  here 
that  the  Germans  publish  their  larger  works  in  successive 
signatures. 

Somewhat  less  valuable  than  Enneecerus'  work  is  the  trea- 
tise of  Prof.  Cosack,2of  Bonn,  the  noted  authority  on  commercial 
law.  His  two  volumes,  the  fifth  edition  of  which  has  recently 
been  completed  (1 909-1 911),  are  not  quite  so  thorough  as 
the  treatise  of  Enneecerus.  An  exhaustive  treatise,  both 
theoretical  and  practical,  is  that  of  Prof.  Crome3  of  Bonn,  the 
fourth  and  last  volume  of  which  appeared  in  1908.  The 
author  takes  account  of  State  law  and  the  provisions  of  the 
code  are  explained,  although  the  work  is  not  a  commentary. 
There  is  a  good  historical  introduction,  as  well  as  a  scholarly 
treatment  of  the  literary  history  and  the  laws  supplementary 
to  the  code.  A  prominent  place  should  be  given  to  the  ex- 
haustive work  of  the  late  Prof.  Dernburg,4  of  Berlin,  who  in 
six  volumes  treats  of  the  civil  law  of  the  Empire  and  Prussia. 


1  Enneecerus,    Ludwig.     Lehrbuch  des  burgerlichen    rechts,    von    dr. 

Ludwig  Enneecerus  ...  dr.  Thcodor  Kipp  .  .  .  mid  dr.  Martin  Wolff 
.  .  .  4th  and  5th ed.  Marburg,  N.G.  Elwert'scheverlagsbuchhandlung, 
1909.  v.  1  (6th  to  8th  ed.),  1912.  One  thousand  copies  constitute 
one  edition  in  Germany. 

2  Cosack,  Konrad.     Lehrbuch  des  deutschen  burgerlichen  rechts,     5th 

ed.     Jena,  Fischer,  1909-1911.     2  v. 

3  Crome,  Carl.     System  des  deutschen  burgerlichen  rechts.      Tubingen 

and  Leipzig,  J.  C.  B.  Mohr  (P.  Siebeck),  kjoo-iooS.     4  v. 
*  Dernburg,  H.     Das  burgerlichc  rechtdes  Deutschen  Reichsund  Preus- 
sens.     3rd  ed.     Halle,  Waisenhaus,  1906-1911.     6  v.  in  7. 


76         GUIDE  TO  THE  LAW  OF  GERMANY 

Supplements  to  the  work,  of  which  eight  have  already  ap- 
peared, cover  the  private  law  of  the  more  important  States  of 
the  Empire.  The  sixth  volume  of  the  work,  which  deals  with 
copyright,  patents  and  trademarks,  insurance  and  procedure, 
was  begun  by  Dernburg  and  finished  by  Prof.  Kohler  after  the 
former's  death.  The  law  of  bills  of  exchange  is  included  in 
the  work.  Prof.  Kohler' s  *  own  work  on  civil  law  merits 
attention,  as  does  a  popular  treatise  by  P.  Simeon.2  The 
latter  also  covers  procedure.  A  work  for  students,  presenting 
the  existing  civil  law  in  simple  historical  development,  includ- 
ing commercial  and  maritime  law,  is  that  by  Dr.  Arthur  Engel- 
mann,3  superior  court  judge  and  professor.  Another  student's 
edition  of  German  law  to  which  attention  may  be  called  is 
published  by  Dr.  Heilfron,4  and  covers  legal  history  and  other 
branches  of  law  besides  the  civil  law.  They  are  handy 
volumes  and  generally  considered  reliable.  A  collection  of 
lectures  on  the  Civil  Code  by  Prof.  Eck,5  of  Berlin,  enjoys  an 
excellent  reputation.  The  lectures  were  published  in  three 
volumes  after  the  author's  death,  by  Prof.  Rudolf  Leonhard, 
of  Breslau. 

A  useful  aid  in  finding  a  desired  section  of  the  Civil  Code, 
published  especially  for  lawyers  trained  in  the  earlier  law, 
is  the  Handu'drterbiich  of  Bernhardt"  In  alphabetical  ar- 
rangement, it  indexes  the  terms  of  the  Prussian  Allgcmcincs 
Landrecht,  the  Badisches  Landrecht,  the  Saxon  Code  and  the 
law  of  the  Rhine  Provinces,  and  indicates  the  corresponding 


1  Kohler,    J.     Lchrbuch    des    burgerlichen    rechts.     v.    I— II.     Berlin, 

Hermann,  1904-1906. 

2  Simeon,  P.     Recht  und  rechtsgang  im   Deutschen     Reiche.     Berlin, 

Heymann,  1907-1909.     2  v.     New  ed.,  v.  1,  1911. 

3  Engelmann,  Arthur.     Das   biirgerliche   recht    Deutschlands.   .  .  .  5th 

ed.     Berlin,  J.  Guttentag,  1909. 
*  Heilfron,  Eduard.     Das  biirgerliche  recht  des   Deutschen  reichs.    3rd 

and  4th  ed.     Berlin,  Speyer  &  Peters,  1907-1909.     6  v. 
6  Eck,  Ernst.     Vortrage  tiber  das  recht  des  Burgerlichen   gesetzbuchs. 

1  and  2  ed.     Berlin,  J.  Guttentag,  1903-4.     3  v. 
6  Bernhardi,  Heinrich.    Handworterbuch  zum  Burgerlichen  gesetzbuche. 

Berlin,  F.  Vahlen,  1902.     419  p. 


CIVIL   CODE  77 

sections  in  the  new  Civil  Code  and  in  other  imperial  statutes. 
A  collection  of  monographs  edited  by  Prof.  Leonhard,1 
intended  to  explain  special  provisions  of  the  new  civil  law, 
began  to  appear  in  1900.  Those  from  Prof.  Leonhard's  own 
pen,  particularly  those  dealing  with  the  subject  of  mistake 
in  law,  are  of  value. 

The  various  divisions  of  the  code  have  been  the  subject  of     Divisions  of 

J  the  Code 

individual  treatment  in  a  number  of  important  works,  to 
which  attention  should  be  called.  The  general  part  of  the 
code  has  had  two  learned  expounders  in  Prof.  Leonhard,2  of 
Breslau,  and  Prof.  Andreas  Tuhr,3  of  Strassburg.  The  latter 
work  is  a  part  of  the  Binding  collection;  the  first  of  its  two 
volumes  has  recently  been  published  (1910). 

Two  extremely  important  works  on  the  theory  of  the 
juristic  person  or  body  corporate,  which  display  the  highest 
type  of  German  legal  research  and  reasoning,  have  been  pub- 
lished by  Prof.  Gierke,4  the  noted  Germanist  of  the  University 
of  Berlin.  While  not  based  on  the  present  code,  they  are 
nevertheless  of  much  value.  The  modern  German  theory 
of  the  corporation  (Genossenschaftstheorie)  originated  with 
Prof.  Beseler.  The  keen  scholarly  discussion  centering  about 
the  legal  distinctions  between  the  universitas  and  the  societas 

1  Leonhard,   Dr.    Rudolf.     Studien    zur   erlaiiterung   dcs   burgerlichen 

rechts.  1900-1910.  32  v.  (small  1  See  the  interesting  review  by 
Prof.  Munroe  Smith  in  the  Political  Science  Quarterly,  v.  25  (1010), 
pp.  167-169. 

2  Leonhard,   Rudolf.     Der   allegemeine  theil  des  Burgerlichen  gesetz- 

buchsin  scincm  einflusse  auf  die  fortentwickelung der  rechtswissen 

schaft.     Berlin,  J.  Guttentag,  1900.    537  p. 
1  Tuhr,  Andreas  von.     Der  allgemeine  nil  des  deutschen  burgerlichen 

rechts.     Leipzig,  Duncker  &  Humblot,  1910.     v.  1. 
*  Gierke,  Otto  F.     Das  deutsche  genossenschaftsreeht.     Berlin,  Weid- 

mannsche  Buchhandlung,  1868-1881.     3  v. 
Gierke,  Otto  F.     Die  genossenschaftstheorie  und  die  deutsche  recht- 

sprechung. . .     Berlin.  Weidmannsche buchhandlung,  1887.    102.jp. 


78         GUIDE  TO  THE  LAW  OF  GERMANY 

excited  the  admiration  of  so  great  a  scholar  as  Prof.  Mait- 
land.  On  the  subject  of  the  theory  and  of  the  general 
contents  of  Prof.  Gierke's  works  in  this  field,  Prof.  Maitland 
has  written  a  learned  introduction  of  45  pages  to  his  trans- 
lation of  Gierke's  Political  theories  of  the  middle  age  (supra, 
Introduction),  part  of  the  third  volume  of  the  larger  work 
now  under  discussion.  Prof.  Saleilles J  of  Paris,  who  has 
made  many  critical  studies  of  the  German  Civil  Code,  published 
a  volume  in  1902  on  "Juristic  persons  in  the  German  Civil 
Code." 
Equitable      The  equitable  trust,  a  legal  institution  of  the  most  profound 

Trust 

importance  in  the  development  of  English  law,  cannot  be 
found  under  the  head  of  "trust"  in  the  German  Civil  Code. 
Its  equivalent  in  Germany  is  found  in  certain  provisions  of 
book  2  and  book  3  of  the  Civil  Code,  as  well  as  in  the  statutes 
concerning  Genossenschaften.  It  is  a  most  elusive  doctrine 
to  locate  in  all  its  parts,  but  its  effects  were  known  to  Roman 
lawyers  and  have  not  failed  of  recognition  in  modern  German 
law.  The  best  treatment  of  the  whole  subject,  in  the  nature 
of  a  comparison  between  the  English  and  German  equitable 
trust,  is  to  be  found  in  an  extended  essay  by  Maitland,  which 
first  appeared  in  German  in  Grunhut's  Zeitschrijt  fur  das 
privat  und  offentliche  recht,  volume  32  (1904-5),  pages  1-76, 
and  has  been  reprinted  in  English  under  the  title  "Trust 
and  corporation"  in  Volume  III  of  the  Collected  papers  of 
Frederic  William  Maitland  (supra),  at  pages  321-404. 
Association      -phe  ruies  relating  to  incorporated  associations  contained 

and      Public  b  r 

Meeting  in  sections  21  to  79  of  the  German  Civil  Code  are  rules  of  private 

law.  The  restrictions  as  to  the  formation  of  associations  and 
the  control  exercised  over  them  on  grounds  of  a  public  nature 
were,  prior  to  the  act  of  April  19,  1908,  regulating  the  right  of 
association  and  public  meeting,  regulated  by  State  law.     This 

1  Saleilles,  R.     Les  personnes  juridiques  dans  le  Code  civil  allemand. 
Paris,  Chevalier,  1902.     147  p. 


CIVIL   CODE  79 

act,  therefore,  may,  from  the  standpoint  of  public  law,  be 
regarded  as  supplementary  to  the  above-mentioned  sections  of 
the  Civil  Code.  A  brief  statement  of  the  provisions  of  the  act 
of  1908  may  be  found  in  the  Journal  of  the  Society  of  Com- 
parative Legislation,  March,  191 1 ,  volume  1 1 ,  n.  s.,  pages  325- 
326.  An  important  work  dealing  with  the  old  law,  particularly 
regarding  the  association  as  a  juristic  person,  was  published 
by  Dr.  Paul  Altmann  in  1905.1  The  best  commentaries  on  the 
act  of  1908,  as  affecting  the  subject,  were  published  by  Prof. 
Fritz  Stier-Somlo  ;  and  Dr.  Leo  Yossen.3  The  former  work  is 
the  more  scholarly.  Both  take  account  of  the  relevant  sections 
of  the  Civil  Code  and  the  Industrial  Code  (Gewerbeordnung). 
Yossen's  commentary  concludes  with  a  dogmatic  presentation 
of  the  existing  law  with  frequent  comparative  references  to 
foreign  legislation.  On  the  question  of  unincorporated  asso- 
ciations without  legal  capacity,  Prof.  Gierke  has  written  a 
small  work  entitled  Vereine  ohm-  rechtsfdhigkeit.* 

Another  study  of  importance  by  Prof.  Saleilles 6  {De  la 
declaration  de  volontS)  covers  the  effect  of  a  manifestation  or 
expression  of  will  as  part  of  a  legal  act.  A  scholarly,  yet 
practical  work,  by  Prof.  Danz,"  of  Jena,  concerns  the  inter- 
pretation to  be  given  to  legal  acts  and  declarations.  It  is 
particularly  valuable  for  its  discussions  of  what  Gareis 
1  Kocourek's  translation)   calls   "juristic  facts."      1'wo   works 

1  Altmann,   Paul.     Handbuch   des  dcutschen   vereinsrechtes.     Berlin, 

H.  W.  Mflller,  1905.     ;ii  p. 

2  Stier-Somlo.     Reichsvereingesetz   von    19.    4.   1908.     Stuttgart,   1909. 

410  p. 

3  Yossen,    Leo.     Kommentar   u.  system  des   Sffentlichen    u.    privaten 

reichsvcreinigungsrcchts.     Berlin,  W.  Rothschild,  1909.    332  p. 
*  Gierke,  Otto.     Vereine  ohne  rechtsfahigkeit.     2d  ed.     Berlin,  1902. 
6  Saleilles.  R.     De  la  declaration    de    volenti-   (Code    civil   allemand). 

Paris,  Pichon,  1901.     423  p. 
0  Danz,    Erich.     Die    auslegung    der    rechtsgeschftfte.     3d   ed.     Jena, 

('..  Fischer,  191 1.    314  p. 


80         GUIDE  TO  THE  LAW  OF  GERMANY 

by  Prof.  Affolter,1  of  Heidelberg,  dealing  with  the  application 
of  foreign  rules  of  law,  as  well  as  with  the  general  rules  of  the 
first  part  of  the  Civil  Code,  also  merit  attention  at  this  point. 
As  historical  and  critical  works  they  deserve  a  prominent 
place. 

Various  portions  of  Book  II  of  the  code  have  been  treated 
in  articles  in  English  and  should  be  noticed.  One  excellent 
article  in  particular  (22  Harvard  Law  Review,  Jan.  1909, 
pp.  161-181),  by  Dr.  Walter  Neitzel,  who  spent  a  year  in  this 
country  studying  American  law  for  the  Leske-Lowenfeld  work 
(supra,  p.  71),  deals  with  "specific  performance,  injunctions 
and  damages  in  the  German  law."  An  article  by  Dr.  Ernest 
Schuster  on  the  subject  of  bailees  in  German  law  (Law  Quar- 
terly Review,  vol.  2,  1886,  pp.  188-212)  deserves  mention. 
The  law  of  bailments  is  treated  historically  in  the  Roman  and 
Germanic  laws  and  in  the  modern  codes,  the  Austrian  and 
Swiss  codes  being  drawn  upon  for  purposes  of  comparison. 
The  law  of  salts,  before  the  code,  is  treated  in  a  short  article 
by  Moses  F.  Wilson  in  the  American  Law  Record,  volume  10 
(1881),  pages  1-6.  It  is  practically  a  translation  from  Lehr's 
Elements  de  droit  civil  germanic  (Paris,  1875).  A  small  book 
by  the  leading  authority  on  commercial  law,  Staub,2  on  breach 
of  contract  and  damages  exercised  great  influence  both  in 
theory  and  in  practice. 

A  valuable  work,  historically,  on  the  law  of  sales,  is  that 
by  the  late  Prof.  Bechmann,3  the  last  volume  of  which  was 
written    after    the    author's    death    by    Prof.    Oertmann,    of 

1  Affolter,    Friedrich    Xaver.     Das    intertemporale    recht.     1.    Bd.,    1. 

2.  Teil.  Leipzig,  1902-3,  2  v. 
Affolter,    F.   X.     Thatbestand,  rechtsverhaltnisse  u.  rechtsordnung, 
grundlagen  eines  allgeraeinen  teiles  des  privatrechtes.     Part  I  and 
cont.     Berlin,  Puttkammer  &  Miihlbrecht,  1897. 

2  Staub,  Hermann.     Die  positiven  vertragsverletzungen  u.  ihre  folgen. 

Berlin,  1904. 

3  Bechmann,  August.     Derkauf  nach  gemeinem  recht  .  .  .     Erlangen, 

A.  Deichert,  1876-1908.     3  v.  in  4. 


LAND    REGISTRY    ACT  8l 

Erlangen.  In  three  large  volumes  the  law  of  sales  in  the 
"received"  Roman  law  (Gemeines  Recht)  is  the  subject  of  a 
most  detailed  discussion.  The  Civil  Code  has,  of  course,  in 
many  respects  revised  and  amended  the  common  law  of  sale, 
and  statutes,  such  as  the  law  of  "purchase  by  installment" 
(hire-purchase  system,  Gesetz  betreffend  die  Abzahlungsge- 
schajti     of  May  16,  1894,  bear  on  the  question. 

A  critical  discussion  of  the  general  theory  of  the  law  of  con- 
tracts or  obligations,  originally  based  on  the  first  draft  of  1888, 
is  undertaken  by  Prof.  Saleilles,1  of  Paris.  A  work  gener- 
ally considered  of  value  on  the  law  of  obligations  is  that  bv 
Prof.  Paul  Oertmann,2  a  learned  and  industrious  contributor 
to  German  legal  periodicals.  The  last  edition  of  his  work 
appeared  in  1910.  An  historical  and  critical  discussion  of  the 
law  of  agency  in  the  general  part  of  the  code  and  in  the  law 
of  obligations,  as  well  as  in  the  Commercial  Code,  is  undertaken 
in  a  work  by  Prof.  Schlossmann,3  of  Kiel.  Two  works  on  tin- 
subject  of  the  law  of  landlord  and  tenant  deserve  passing 
at  tuition  here,  one  by  Dr.  Mittelstein  4  and  the  other  by  Dr. 
Niendorff.5      The  former  is  the  more  scientific. 

Closely    connected    with    the    law    of    things,    covered    by    Land  Regis- 
Book  III  of  the  Civil  Code,  in  which  is  included  the  greater 
part  of  the  real  property  law  of  Germany,  is  the  Land  Registry 
Act  {Grundbuchordnung)  of  March  24,  1897.     In  the  course  of 
a  study  on  foreign  land  registry  systems,  C.  Fortescue  Brick  - 

1  Saleilles,    Raymond.     Etude   sur   la    theorie  gejierale  de  ['obligation. 

2d  ed.     Paris,  F.  Pichon,  1901.     477  p. 

2  Oertmann,    Paul.     Das  recht  der  schuldverhaltnisse.     3d  and  4th  ed. 

Berlin,  Carl  Heymann.  1010. 
■  Schlossmann,    Siegmund.     Die    li  lire  von    der   stellvertretung,  insbe- 

sondere  bei  obligatorischen   vertragen.      Leipzig,    A.   Deichert  (G. 

Bohme)  1900-1902.     2  v. 
4  Mittelstein,  M.     Die  miete    nach  dem  recht  des   Deutschen  Reiches. 

2d  ed.     Berlin,  F.  Vahlen,  1909.     613  p. 
6  Niendorff,  Oskar.    Mietrecht  nach  dem  Burgcrliclu  n  gesetzbucb  .  .  . 

8th  ed.     Berlin,  C.  Duncker,  1907.     405  p. 
297740 — 12 6 


82         GUIDE  TO  THE  LAW  OF  GERMANY 

dale,  assistant  registrar  of  the  land  registry  of  England,  pub- 
lished the  result  of  his  investigations  in  Germany  and  Austria 
in  an  official  report  and  in  a  number  of  legal  periodicals.  The 
report  was  prepared  from  an  administrative  rather  than  from 
a  legal  standpoint,  and  was  commented  on  in  a  number  of 
books  and  articles.  It  was  incorporated  in  the  Parliamentary 
Papers  (1896  [c.  8139],  LXXXIV,  85;  1897  [c.  8139], 
LXXXVIII,  353).  Part  of  the  report  appeared  in  the  Ameri- 
can Law  Review  (Volume  31  (1897),  pages  827-838,  and  in 
the  Law  Quarterly  Review,  volume  4  (1888),  pages  63-70). 
A  useful  analysis  and  critical  commentary  on  Mr.  Brickdale's 
report  was  published  in  pamphlet  form  by  Edmund  K.  Blyth.1 
It  discusses  Germany's  system  of  compulsory  and  universal 
registry  of  title  and  interests  in  land,  with  special  reference 
to  its  applicability  in  England.  A  few  pages  of  Morris'  work 
on  land  registration,2  pages  103-107,  summarize  the  system 
prevailing  in  Germany  and  Prussia  and  include  bibliographic 
references.  'A  discussion  of  the  report  by  John  Burns  appeared 
in  the  Juridical  Review,  volume  9  (1897),  pages  155-160.  Dr. 
Walter  Neitzel  explains  the  operation  of  the  present  Land 
Registry  Act  in  the  Harvard  Law  Review,  volume  21  (1907-08), 
pages  485-488. 

The  most  important  German  work  on  the  subject  of  land 
registration,  the  first  volume  of  which  deals  with  the  law  of 
things  in  the  Civil  Code,  is  that  by  Drs.  Turnau  3  and  Forster, 
two  supreme  court  judges.     Dr.  Oberneck  4  is  the  author  of 

1  Blyth,  E.  K.     The  German  and  Austrian  systems  of  land  registry  and 

their  application  to  England.     London,  Stevens  &  Sons,  1897.     33  p. 

2  Morris,  R.  B.     A  summary  of  the  law  of  land  and  mortgage  registra- 

tion in  the  British  Empire  and  foreign  countries.     London,  Clowes, 
1895.     176  p. 

3  Turnau   und    Forster.     Das    liegenschaftsrecht   nach    den    deutschen 

reichsgesetzen    und  den    preussischen    ausfuhrungsbestimmungen. 
3d  ed.     Paderborn,  F.  Schoningh,  1906.     2  v. 
*  Oberneck,  Herm.     Das    reichsgrundbuchrecht.     4th    ed.    Berlin,    C. 
Heymann,  1909.     2  v. 


EMINENT  DOMAIN  83 

a  prominent   work  on   the    Land    Registry   Act,   the  fourtli 

edition  of  which  appeared  in   1909.     Another  recent   work, 

the   most   voluminous  commentary  on  the  subject,   dealing 

especially  with  land  registration  in  Prussia,  is  that  by  Dr.  G. 

Giithe  (2d  ed.,   191 1).1     Court  decisions  in  matters  of  land 

registration   are  published  officially   by   the   Department   of 

Justice  -  and  in  some  of  the  court  reports  mentioned  supra. 

The  history  of  the  Land  Registry  Act  with  complete  accounts 

of  the  literature  on  the  subject  and  with  all  the  decisions  are 

published  by  Schroeder  and  Albrecht.3     The  seventh  volume 

of  the  series  appeared  in  191 1. 

In  connection  with  the  law  of  real  property,  it  may  be  well    Eminent  Do- 
main 
to  mention  two  important  works  on  the  law  of  eminent  domain, 

especially  as  it  is  in  force  in  Prussia.     The  matter  is  governed 

by   the   expropriation   law    (Gesetz   iiber  die  Enteignung  von 

Grumdeigenthum)  of  June  11,  1874,  as  amended.     The  leading 

commentary  on  the  subject,  that  by  Dr.  Georg  Eger,4  has 

recently  appeared  in  a  third  edition.      It  is  carefully  annotated 

with  the  decisions  of  the  Prussian  and  imperial  courts.     An 

able  treatise  on  eminent  domain  was  published  by  Dr.  Max 

Layer 5  as  one  of  a  series  of  monographs  under  the  title  Slaats- 

und  volkerrechtlich    abhandlungen.     It  is  partly  comparative 

in  its  treatment.     F.  Seydel  is  the  author  of  one  of  the  more 

prominent  works  on  the  subject. 6 

1  Giithe,  G.  Die  grundbuchordnung  fiir  das  Deutsche  Reich.  2d  ed. 
Berlin,  F.  Vahlen,  1911.     2  v. 

1  Entscheidungen  in  angelegenlu  id  11  der  freiwilligen  gerichtsbarkeit 
11.  des  grundbuchreehts.  hrsg.  im  Reichsjustizamt.  11  v.,  and 
index  to  v.  1-10.     Berlin,  Puttkammer  &  Muhlbrecht,  1900-1911. 

3  Grundbuch-Entscbeidungen.      Die    grundbuchfragen    der    ersten    10 

jahredesneuenrechtsin  rechtsprechung  u.  zeitschriftenliteratur,  von. 
E.  Schroeder  11  P.  Albrecht.     Leipzig,  Dieterich,  1900-11.     v.  1-7. 

4  Eger,  Georg.     Das  gesetz  iiber  die  enteignung  von  grundeigenthum. 

3d  ed.     Breslau,  Kern,  1910-12.     2  v. 
'Layer,  Max.    Principien des  enteignungsrecht  I  >uncker& 

Humblot,  1902.     (if.ii  p. 
6  Seydel,  F.     Das  geset/.  iiber  die  enteignung  von  grundeigentum.     4th 

ed.     Berlin,  Heymann,  1911.    348  p. 


84         GUIDE  TO  THE  LAW  OF  GERMANY 

A  study  on  possession  in  law,  which  from  Savigny's '  cele- 
brated tract  in  1803  to  Jhering's  last  days,  was  a  favorite 
subject  for  theoretical  discussion  by  German  legal  scholars, 
was  published  in  1888  by  Prof.  Strohal,2  the  learned  jurist  of 
Leipzig.  Most  of  the  English  works  on  jurisprudence  have 
given  attention  to  the  German  theories  of  possession. 

Book  IV  of  the  German  Civil  Code,  dealing  with  family  law, 
has  also  been  the  subject  of  a  great  many  special  studies.  A 
reliable  summary  of  the  provisions  of  German  law  relating  to 
marriage  and  divorce  will  be  found  in  Renton  and  Phillimore 
The  comparative  law  of  marriage  and  divorce  (London,  Sweet  & 
Maxwell,  1910)  which  constitutes  Volume  III  of  Burge's  new 
edition  of  the  Commentaries  on  colonial  and  foreign  laws.  While 
the  German  law  is  scattered  through  the  work  under  the  various 
subdivisions  of  the  law  of  marriage  and  divorce,  the  whole  body 
of  the  law  of  Germany  is  indexed  under  Germany,  so  that  there 
is  little  difficulty  in  locating  a  desired  provision.  Attention  is 
also  given  to  the  rules  of  the  Hague  conferences  on  marriage 
and  divorce,  which  to  a  large  extent  affect  German  law.  One 
chapter  of  Ringrose's  Marriage  and  divorce  laws  of  the  world 
(London,  N.  Y.,  191 1)  is  devoted  to  Germany.  The  provisions 
of  the  Civil  Code  relating  to  marriage  and  of  the  law  of  Personal 
Status  and  recording  of  marriages  of  February  6,  1875,  as 
amended  May  20,  1898,  including  a  summary  of  the  special 
provisions  of  the  Federal  States  relating  to  the  marriage  of 
foreigners,  are  printed  at  pages  92-108  of  an  official  publication 
of  the  British  Government,  entitled  Laws  relating  to  marriage  in 
force  in  certain  foreign  countries,  presented  to  Parliament  De- 
cember 191 1,  (Misc.  No.  11  [191 1],  Cd.  5995).  The  question  of 
divorce  has  recently  been  treated  in  an  article  by  Dr.  Schuster, 

1  Savigny's  von.     Treatise  on  possession,  6th   edition;  translated  from 

the  German  by  Sir  Erskine  Perry.   London,  S.  Sweet,  1848.     432  p. 

2  Strohal,  E.     Der  sachbesitz  nach  dem  B.  G.  B.  Jena,  Fischer,   1888. 

137  P- 


REGISTRATION   OK   PERSONAL   STATUS  85 

entitled  "  History  and  present  condition  of  the  German  divorce 
law  "  (Journal  of  the  Society  of  Comparative  Legislation,  vol. 
io,  April,  1910,  pp.  229-238).  A  summary  of  the  important 
provisions  of  German  divorce  law  is  printed  in  the  Law  Times, 
vol.  130  (Feb.  11,  1951).  pages  364-365. 

Prof.  Opet  of  Kiel,  cooperating  with  Prof.  Blume,  of  Konigs- 
berg,  published  an  important  commentary  on  family  law  in 
the  code.1  The  German  law  of  marriage  and  divorce,  as 
affected  by  the  Hague  conference  of  June  12,  1902,  was  treated 
in  a  work  by  Dr.  Karl  Sauer  2  published  in  1909. 

Marriage,  and  especially  its  registration  and  authentication,  J"5^^ 
is  still  largely  governed  by  the  law  of  personal  status  {Per so-  ''»■> 
nenstandsgi  setz)  of  February  6,  1875.  This  law  also  includes 
provisions  concerning  the  registration  of  births  and  deaths  and 
other  requirements  of  form,  jurisdiction  over  which  matters 
were  by  that  statute  transferred  to  the  civil  authorities.  The 
best  work  on  the  subject  of  this  law  of  1875,  also  covering  the 
provisions  of  the  Civil  Code,  is  that  by  the  late  Prof.  Hinschius 3 
(the  celebrated  authority  on  canon  law),  the  fourth  edition  of 
which,  edited  by  W.  Boschau,  appeared  in  1909.  Account  is 
taken  of  the  provisions  of  the  Introductory  Act  so  far  as  they 
relate  to  the  private  international  law  of  marriage  and  divorce. 
The  Hague  conferences  are  noticed  and  the  Noncontentious 
Jurisdiction  Act  receives  attention.  The  author  also  reprints 
the  laws  of  the  different  States  (Ausfiihrungsgeseize) ,  carrying 
out  in  detail  the  general  provisions  of  the  imperial  law.  Two 
good  commentaries  on  the  Personal  Status  Law  are  those  by 

1  Opet,  Otto  u  W.   von.   Blume.     Das  familicnreeht  des  Biirgerlichen 

gesetzbuchs.     Berlin,  C.  Heymann 's  verlag,  1904-1906.     2  v. 

2  Sauer,  Karl.      Das  dcutschc  chcschliessungi-  und  chescheidungsrecht. 

Miinchcn  und  Berlin,  J.  Schweitzer  (A.  Sellier)  1909.     778  p. 

3  Boschau.    Wilhelm.     Das   reiclisgcsctz    fiber   die    beurkundung    des 

pcrsonenstandes  und  die  eheschliessung  vom  6.  februar  1875.  Bc- 
griindet  von  dr.  Paul  Hinschius.  4th  ed.  Berlin,  J.  Guttentag, 
1909.     654  p. 


86         GUIDE  TO  THE  LAW  OF  GERMANY 

Sartorius  '  (Munich,  1902),  and  Stolzel 2  (Berlin,  1904).  This 
law  of  registration  of  births,  marriages,  deaths,  etc.,  is  of 
great  importance  to  the  administrative  officer  in  charge  of  regis- 
tration. A  work  dealing  with  the  law  from  the  point  of  view 
of  administration  is  published  by  Erichsen  and  Weisse;3  it  has 
already  appeared  in  ten  editions. 

A  work  dealing  with  the  law  of  guardianship,  especially  the 
placing  of  irresponsible  persons  under  guardianship,  written 
from  the  standpoint  of  private  international  law  as  it  affects 
Germany,  is  that  by  Dr.  Otto  Levis.4  German  legislation  and 
procedure,  and  the  Hague  convention  of  July  17,  1905,  are 
fully  discussed.  The  guardianship  of  minors  is  treated  in  a 
work  by  Schroeder  and  Mugdan.5 

Book  V  on  the  law  of  inheritance  and  the  administration  of 
decedents'  estates,  has  been  the  subject  of  some  noteworthy 
treatises,  the  principal  one  of  which  is  that  by  Prof.  Strohal,6 
of  Leipzig,  in  two  volumes.  Prof.  Julius  Binder,7  of  Erlangen, 
has  published  a  study  in  three  volumes  on  the  legal  position 
of  the  heir  in  the  German  Civil  Code.  The  administration  of 
estates  has  been  treated  in  a  popular  volume  by  Dr.  Gustav 
Marker,   the8  seventeenth    edition  of  which  was  edited   by 

1  Sartorius,  C.    Kommentar  zum  Personenstandsgesetz.    Miinchen,  Beck, 

1902.     548  p. 

2  Stolzel,  O.     Das  personenstandsgesetz  vom    6.   II.  1875.     Berlin,   O. 

Haring,  1904.     306  p. 

3  Erichsen,   A.   v.,   u   Otto   Weisse:     Die    fiihrung  der  standesregister. 

Praktische  anleitg.  f.  standesbeamte.     10.,   vollstandig  ncu  bearb. 
aufl.  v.  Karl  Sauer.  Berlin,  E.  Grosser,  1911.     664  p. 

4  Levis,  Otto.     Das  internationale  entmiindigungsrecht  des  Deutschen 

Reiches.  Leipzig,  C.  L.  Hirschfeld,  1906.     314  p. 
6  Schroeder  und  Mugdan.    Das  deutsche  vormundschaftsrecht.    Berlin, 
R.  v.  Decker,  1900.     690  p. 

6  Strohal,  Emil.     Das  deutsche  erbrecht  auf  grundlage  des  Biirgerlichen 

gesetzbuchs.     3d  ed.  Berlin,  J.  Guttentag,  1903-4.     2  v. 

7  Binder,  J.     Die  rechtsstellung  der  erben  nach  dem  B.  G.  B.  Leipzig, 

A.  Deichert,  1901-1905.     3  v. 

8  Marker,   Gustav.      Die   nachlassbehandlung.     17th  ed.  bearb.   v.    P. 

Kohne  u.  R.  Feist.     Berlin,  R.  &  Decker,  1902.     690  p. 


INHERITANCE  87 

Kohne  and  Feist  in  1902.  It  deals  especially  with  Prussian 
law.  A  practical  book  of  reference  is  that  by  Dr.  G.  Eichhorn,1 
judge  of  the  court  of  appeal,  the  fifth  edition  of  which,  edited 
by  Dr.  Ernest  Goldmann,  of  Berlin,  was  published  in  1910. 
It  was  originally  written  from  the  standpoint  of  the  Prussian 
Landreckt,  but  the  later  editions  apply  to  the  Civil  Code.  In 
the  administration  of  estates  and  in  a  number  ot  other  details 
of  the  law  of  inheritance,  considerable  jurisdiction  has  been 
left  to  the  States  of  the  Empire.  This  volume  deals  especially 
with  the  supplementary  legislation  and  conditions  in  Prussia. 
It  treats  the  subject  from  the  point  of  view  of  the  written  will, 
from  its  first  draft  until  final  probate.  There  is  an  appendix 
of  forms.  A  work  which  enjoyed  great  popularity  some  years 
ago  and  which  is  still  of  considerable  value  on  the  subject  is 
that  by  Dr.  Ferdinand  Bohm,2  the  founder  and  first  editor  of 
Niemeyer's  Zeitschrift  fur  Internationales  recht.  It  deals  with 
the  administration  of  estates  in  the  principal  countries  of  the 
world,  and  gives  a  detailed  account  of  the  laws  of  Germany 
and  the  Germai.  States,  with  references  to  the  modifying  effect 
of  treaties. 

Prior  to  the  act    of    Tulv   ■$,    1906  inheritance-taxes  were  inheritance 

J      J     J'       y  Taxes 

imposed  by  each  of  the  separate  States  of  the  German  Empire. 
By  the  Imperial  Financial  Act  of  that  date,  a  general  or  Federal 
inheritance  tax  law  was  enacted  which,  while  it  superseded 
the  earlier  laws,  nevertheless  allotted  to  the  separate  States  a 
part  of  the  proceeds  and  allowed  them  the  privilege  of  levying 
certain  additional  or  supplemental  inheritance  taxes  on  their 
own  account.  A  concise  analysis  of  the  German  act  of  1906  is 
printed  in  English  in  a  compilation  prepared  by  the  Solicitor 
of  the  Department  of  Commerce  and  Labor  in  1909  under  the 

1  Eichhorn,  G.  Dastcstamcnt.  Hand-  und  musterbuchfiir  vcrfiigungen 
von  todes  wegen  nach  dim  B.  G.  B.  5th  cd.  by  Ernest  Goldmann. 
Berlin,  Hranz  Yahkn,  1910. 

;B6hm,  Ferdinand,  Handbuch  dcr  intcrnationalen  nachlassbchand- 
lung.     Augsburg,  Gebr.  Reichel,  1881-1885.     2  v. 


88         GUIDE  TO  THE  LAW  OF  GERMANY 

title  of  "Inheritance-Tax  Laws."  l  At  pages  32-41  there  is  a 
discussion  of  the  form  of  the  tax,  the  property  taxed,  exemp- 
tions, valuation  of  property,  how  the  tax  is  graduated,  how 
levied,  and  the  distribution  of  proceeds.  A  leading  work  on 
the  inheritance  tax  law  is  the  commentary  of  Ulrich  Hoff- 
mann -  (2d  ed.,  1911). 

We  should  not  omit  to  mention  some  important  periodicals 
which  deal  largely  with  German  civil  law.  A  very  important 
publication  is  the  Jahrbuch  des  deutschen  rcchtes,3  edited  by  Dr. 
Hugo  Neumann  and  Dr.  Th.  Olshausen,  with  the  cooperation 
of  many  other  lawyers.  In  an  annual  volume,  the  periodical 
literature  and  decisions  of  the  year  are  arranged  under  the 
articles  of  the  code  or  statute  which  they  construe.  The  pub- 
lication began  in  1903,  and  an  index  covering  the  first  seven 
volumes  appeared  in  1909.  An  important  periodical  is  the 
Archiv  fiir  burgerlichcs  recht*  edited  by  Profs.  Kohler  and 
Oertmann  and  Dr.  Ring.  It  continued  Busch's  Archiv  des 
allgemeincn  deutschen  handels-  und  wechselrechts.  Its  annual 
bibliographies  by  Dr.  Maas  are  valuable.  An  old  established 
periodical  is  known  under  the  popular  name  of  Grtichot's 
Beitrage.5  It  was  founded  in  1857  and  appears  bimonthly.  It 
is  now  edited  by  Rassow,  Kuntzel,  and  Eccius.  Another  well- 
known  periodical  is  that  edited  by  F.  Detken  and  A.  Finger, 
published  in  Erlangen  under  the  title  Dcr  Gerichtssaal*     It 

1  Digest  of  the  principal  features  of  the  laws  of  Great  Britain,  France, 

and  Germany,  together  with  an  outline  of  inheritance  taxation  in 
the  United  States  and  a  collection  of  judicial  decisions  relating 
thereto.     Washington,  Government  Printing  Office.  1907. 

2  Hoffmann,  Ulrich.     Das  erbschaftssteuergesetz  fiir  das  Deutsche  Reich 

von  3.  Juli  1906.     2d  ed.     Berlin,  Guttentag,  1911. 

3  Jahrbuch  des  deutschen  rechtes.  hrsg.  von  Dr.  Hugo  Neumann.     "1-8 

jahrg.  and  cont.;  1903-1910.  Berlin,  F.  Vahlen,  1904-1911.  8  v. 
Index,  vols.  1-7. 

4  Archiv.  fiir  biirgerliches  recht  .  .  .  Berlin,  C.  Hermann,   1889-1910. 

v.  1-35  and  cont. 
6  Beitrage     ziir    erlaiiterung    des    deutschen    rechts    .    .    .    1857-1910. 

Hamm,  G.  Grote,  1857-1910.     v.  1-54  and  cont. 
6  Gerichtssaal,  Der.  Stuttgart,  F.  Enke,  1849-1910.    v.  1-76  and  cont. 


LITERARY    AND   INDUSTRIAL   PROPERTY  89 

was  founded  in  1859,  and  discusses  questions  on  all  branches 
of  law.  The  Deutsche  jitristen-zeitung,1  founded  by  Profs. 
Laband  and  Staub,  and  now  edited  by  Prof.  Laband  and 
Judges  Ilamm  and  Heinitz,  enjoys  a  sterling  reputation.  It 
was  founded  in  1896.  The  Juristische  wochenschrift,2  founded 
in  1872,  edited  by  Hugo  Neumann,  is  the  organ  of  the  German 
Bar  Association.  It  is  very  popular  among  practicing  lawyers. 
Das  recht,  a  periodical  edited  by  J.  Soergel  in  Hannover,  is 
published  fortnightly;  the  reporting  of  the  most  recent 
decisions  is  its  principal  feature.  The  Zeitschrijt  fur  deutst  fa  s 
biirgerliches  recht  und  jranzosisches  zivilrechl,3  which  was 
founded  in  1870,  originally  laid  considerable  emphasis  on 
French  civil  law  and  still  bears  this  indication  in  its  title.  It 
contains  critical  discussions  of  decisions  and  excellent  articles. 
Its  present  editors  are  Drs.  Heinsheimer,  Hiibcr,  and  Diefen- 
bach.  A  scholarly  journal,  founded  in  1887,  is  known  under 
the  popular  name  of  "Jhering's  Jahrbucher."  *  Its  editors  have 
always  been  leading  jurists,  the  present  editorial  staff  con- 
sisting of  Profs.  Strohal  and  Ehrenberg.  The  renowned  Ru- 
dolph von  Jhering  was  its  editor  in  chief  until  his  death  in 
1892. 

LITERARY    AND   INDUSTRIAL   PROPERTY. 

A  subject  usually  treated  in  works  on  civil  law  and  yet  dealt 
with  in  separate  statutes,  is  that  body  of  legal  rights  known 
in  Germany  under  the  head  "Immaterial  Rechte,"  i.  e.,  rights 


1  Deutsche   juristcn-zeitung.      Berlin,    Otto   Liebmann,    1896-1910.     v. 

1-15  and  cont. 
'Juristische   woehenschrift  .  .  .  Organ  des  Deutsclun  anwalt-vereins. 

Berlin,  W.  Moeser,  1872-1910.  v.  1-39  and  cont. 
3  Zeitschrift  fiir  deutsches  biirgerliches  recht  und   franzdsisch.es  civil- 

recht.      1870-1907.     Mannheim,   J.   Bcnsheimer,   1.S70-1907.     38  V. 

and  ei.ni . 
*  Jherings  jahrbucher  fur  die   dogmatik  des  burgerliclun  rcchts  .  .  . 

1857-1910     Jena,   1'.  Mauke,  (.etc.)  1857-77;  G.  Fischer,  1878 —  v. 

1-58  and  cont. 


90         GUIDE  TO  THE  LAW  OF  GERMANY 

in  immaterial  things  or  the  incorporeal  property  rights  growing 
out  of  products  of  the  human  mind  and  protected  bv  copy- 
right, patent  and  trademark. 
Copyright  Copyright  of  literary,  dramatic  and  musical  compositions 
is  governed  by  the  act  of  June  19,  1901  (Reichsgesetz 
belrefjend  das  Urheberrecht  an  Werken  der  Literatur  und  der 
Tonkunst),  as  is  also,  in  a  statute  passed  the  same  day,  the 
cognate  subject  of  the  relative  rights  of  author  and  pub- 
lisher {Verlagsrecht).  An  English  translation  of  these  two 
statutes '  was  published  in  1902  by  Messrs.  Longmans, 
Green  &  Co.  The  acts  of  June  19,  1901  are  briefly  analyzed 
in  Copinger's  Law  of  copyright  (London,  Stevens  &  Haynes) 
fourth  edition,  1904,  pages  576-581. 

The  learned  Prof.  Kohler  has  occupied  himself  largely  with 
the  subject  of  "immaterial  rights"  and  has  published  works  on 
various  branches  of  the  general  subject.  His  contribution  to 
the  sixth  volume  of  Dernburg's  Biirgerliches  recht  on  the  law 
of  copyright,  has  already  been  mentioned  {supra,  p.  76). 
An  independent  work  from  his  pen  was  published  in  1907.2 
Privy  Councillor  Paul  Daude  3  has  recently  published  a  book 
dealing  with  the  copyright  and  publisher's  law  of  1901,  which 
is  especially  useful  to  the  practitioner.  A  general  work  on 
the  law  of  copyright  in  Germany,  dealing  also  with  its  inter- 
national aspect,  is  that  by  Dr.  Ernest  Muller,4  the  second  vol- 

1  The  law  of   copyright   in   Germany:  being   an   English  translation  of 

I,  The  German  act  of  June  19,  1901,  relating  to  copyright  in  lit- 
erary and  musical  works;  II,  the  German  act  of  June  19,  1901,  relat- 
ing to  right  of  publication.  London,  New  York,  Longmans,  Green  & 
Co.,  1902.     39  p. 

2  Kohler,  J.  Urheberrecht  an  schriftwerken  und  verlagsrecht.      Stutt- 

gart, Enke,  1906-7.     515  p. 
;  Daude,  Paul.     Die   reichsgesetze   iiber   das  urheberrecht  an  werken 

der  literatur  und  der  tonkunst  und  das  verlagsrecht  vom  19.     Juni 

1901.     Berlin,  J.  Guttentag,  1910.     293  p. 
*  Miiller,  Ernst.     Das  deutsche  urheber-  und  verlagsrecht.      Miinchen, 

J.  Schweitzer,  1901-07.     2  v. 


COPYRIGHT  91 

time  of  which  was  published  in  1907.  Prof.  Riezler '  is  the 
author  of  a  systematic  work  on  the  subject ;  he  includes  patent 
law  in  his  treatment.  The  copyright  treaties  of  Germany 
are  printed  in  a  work  by  Prof.  Ernst  R6I  hlisberger  :  of  Munich. 

The  act  of  January  9,  1907,  which  repealed  the  act  of  1876, 
governs  the  copyright  of  a  production  belonging  to  one  of  the 
formative  arts,  including  paintings,  drawings,  sculpture,  etc., 
and  for  the  copyright  of  photographs  {Gesetz  betreffi  nd  I  'rheber- 
rechl  an  Werken  der  bildenden  Kunsie  it.  der  Photographic). 
Prof.  Phillip  Allfeld3  of  Erlangen,  who  has  made  a  specialty 
of  the  subject  of  copyright,  published  in  1908  a  small  con- 
venient commentary  dealing  with  the  law  of  January  9,  1907, 
just  mentioned;  he  reprints  the  German  treaties  and  the  last 
Berne  convention  of  November  13,  1908.  Prof.  Kohler 4 
also  published  a  work  on  the  subject  in  1908. 

The  German  law  of  newspapers,  so  far  as  relates  to  their 
publication,  their  rights  and  responsibility,  etc.,  is  the  sub- 
ject of  a  four  volume  work  by  Albert  Ebner  6  entitled  Das 
deutsche  zeitungsrecht,  volume  2  of  which  deals  in  particular 
with  the  German  press  law. 

The  law  concerning  the  protection  of  industrial  property  is 
found  in  several  statutes,  the  Patent  Act  (Patentgcsctz)  of 
April  7,  1 89 1,  the  Useful  Models  Act  (Gebrauchsmuster-Gesetz) 
of  June  i,  1891,  the  Act  for  the  Protection  of  Trademarks 
{Gesetz  zum  Schutze  der  Warenbezeichnungen)  of  May  12,  1894, 
and  the  very  important  Act  for  the   Prevention  of  Unfair 

1  Riezler,  Brwin.     Deutsches  urheber  u.  erfinderrecht.     Systematische 

darstellung.     Miinchen,  Schweitzer,  1909.     494   p 
*  Rothlisberger,    Ernst.      Die    sonder-literaturvertrage    des    Deutschen 

Reiches  ausgelegt.     Bern,  A.  Francke,  1909.     135  p. 
3  Allfeld,    Philip.      Koimncntar  zu  dem  Geset/e.  betreffend  <las  urhe- 

bcrrccht    an    werken    der    bildenden    kiinsle   n.    der  photographic 

vcim  9  Januar  iuo;.    Munchen,  Beck,  1008.    318,  22  p. 
'Kohler,  J.  Kunstwerkrecht.    Stuttgart,  Enke,  1908.     [91  i>. 
6  Ebncr,  Albert.     Das  deutsche  prcssrecht.     Hanover,  M.  Janecke,  1909. 

167  i>. 


92  GUIDE   TO   THE   LAW   OF   GERMANY 

Competition    (Gesetz   zur   Bckdmpfung   des   unlauteren    Wett- 
bewerbs). 
Patents  The  Patent  Act  (Patentgesetz)  of  April  7,   1891,  which  pro- 

tects the  rights  of  inventors,  amended  the  original  act  of  May 
25>  I^77-  English  translations  and  discussions  of  the  act  may 
be  found  in  various  sources.  The  act  is  translated  in  a  small 
work  by  Selmar  Reitzenbaum,1  which  also  includes  important 
German  decisions  under  the  Patent  Act.  In  the  English  edi- 
tion of  the  important  series  edited  by  Prof.  Kohler 2  and 
Maximillian  Mintz,  The  patent  laws  of  all  nations,  the  patent 
laws  of  Germany  are  systematically  presented  (Vol.  2,  pt.  2). 
In  a  work  by  Singer 3  on  the  Patent  and  trade-mark  laws  of  the 
world,  pages  166  to  176  are  devoted  to  an  analysis  of  the  pro- 
visions of  the  German  Patent  Act.  A  recent  work  by  Wallace 
Fairweather  '  on  Foreign  and  colonial  patent  law  gives  in  con- 
cise form  (pp.  178-186)  the  principal  provisions  of  German 
patent  legislation.  The  treaty  5  governing  patents,  between 
the  United  States  and  Germany,  which  was  signed  on  February 
23,  1909,  and  proclaimed,  August,  1909,  may  be  obtained  as  a 
separate  pamphlet.  American  inventors  desiring  a  patent  in 
Germany  are  governed  by  the  provisions  of  that  treaty,  which 
is  supplementary  to  German  legislation. 

1  Reitzenbaum,    Selmar.      Important   decisions  regarding   the    working 

of  German  patents,  as  well  as  literal  translations  of  the  German 
patent  law,  of  the  act  for  the  protection  of  gebrauchsmuster  (German 
utility  model  patent),  and  of  the  German  law  for  the  protection  of 
trade  marks,  together  with  German  technical  phraseology  (in  paren- 
theses) of  German  patent  rule  and  practice;  by  patentanwalt  Selmar 
Reitzenbaum  ...  2d    ed.     London,  Asher  &  Co.,  1909.     48  p. 

2  Kohler  u.  Mintz.     Die  patentgesetze  aller  volker  (The  patent  laws  of 

all  nations).     Berlin,  Decker,  1907. 

3  Singer,  B.     Patent  and  trade  mark  laws  of  the  world.     Chicago,  1911. 

4  Fairweather,  Wallace  C.     Foreign  and  colonial  patent  law.     London, 

Constable,  1910. 
6  United  States.     Convention  between  the  United  States  and  Germany. 
Patents  .  .  .  Washington,  Govt.  Print.  Off.,  1909.     5  p. 


USEFUL   MODELS  93 

The  most  important  German  work  on  patent  law  is  the  volu- 
minous Handbuch  of  Prof.  Kohler '  published  in  1901,  an 
index  to  which  appeared  in  1904.  In  1910  the  same  author 
published  a  compact  treatise  3  on  the  subject,  which  is  philo- 
sophical and  historical  and  yet  practical.  A  large  commen- 
tary, much  used  by  practitioners,  is  Kent's  Kommentar* 

The  law  for  the  protection  of  useful  models  {Gesetz  betrefjend 
den  Sch  i<t:  von  Gebrauchsmuster)  of  June  1,  1891,  is  often 
1  nated  of  in  connection  with  the  Patent  Act.  The  Useful 
Models  Act  is  translated  into  English  in  the  small  work  of 
Reitzenbaum,  supra.  The  most  recent  work  on  the  subject, 
by  Hermann  Isay,4  covering  both  acts  (2d  ed.,  1911),  has  been 
very  favorably  reviewed.  Dr.  Arnold  Seligsohn,5  an  authority 
on  the  subject,  has  likewise  treated  both  acts  in  one  volume. 
The  fourth  edition  of  his  work  was  published  in  1909.  It  con- 
tains a  history  of  both  acts,  with  an  exhaustive  commentary. 
Prof.  Kohler6  has  made  a  small  but  valuable  contribution  to 
the  literature  of  the  law  for  the  protection  of  useful  models  in 
a  work  published  in  1909.  It  is  a  scientific  treatise  and  not  a 
commentary.  A  recent  work  on  the  subject,  by  Otto  Cantor,7 
the  largest  commentary  on  the  law,  has  gathered  all  the  deci- 

'  Kohler,  J.     Handbuch  des  dcutschen  patentrechts  (971  p.)    Sach  11. 

schlagwoi Iverzeichnis    by    Rathenan    (45    pi      Mannheim,    Ben- 

sheimer,  1901-4. 
2 Kohler,  Josef.     Lchrbueh  des  patentrechts.     Mannheim,  Bensheimer, 

1908.     264  p. 

3  Kent,  P.     Das  Patentgesetz  vmn  7   IV.     1891.     Kommentar.     Berlin, 

Hcymann,  1906-7.     2\\ 

4  Isay,  Herm.    Patentgesetz  u.  gesetz,  betr.  den  schutz  von  gcbrauchsmus- 

tern.      Systematisch   erlautert.      2d   ed.      Berlin,    1".    Yahlen.    1911. 

S84  P- 

5  Seligsohn,   Arnold.     Patentgesetz  und  gesetz,   betreffend  den  schutz 

von  gebrauchsmustern.     4thed.     Berlin,  J.  Guttentag,  1909.     58op. 

'Kohler,  J.  Musterrecht.  Geschmacks-  u.  gebrauchsmustcrrecht. 
Stuttgart,  F.  Hnke,  1909.      165  p. 

7  Cantor,  Otto.  Gesetz  betr.  den  schutz  von  gebrauchsmustern.  Ber- 
lin, F.  Siemenroth,  1911.     1365  p. 


Useful  Models 


94         GUIDE  TO  THE  LAW  OF  GERMANY 

sions  governing  the  different  sections  of  the  act,  together  with 
such  decisions  as  are  relevant  to  the  like  provisions  of  the 
Patent  Act. 

A  valuable  collection  of  patent  decisions  1  was  begun  in  1881 
under  the  editorship  of  Prof.  Gareis  of  Munich.  In  recent 
years  the  collection  has  been  edited  with  the  cooperation  of 
Prof.  Osterrieth.  The  sixth  volume  of  the  new  series  (six- 
teenth of  the  whole  series)  edited  by  Julius  Magnus,  was  pub- 
lished in  191 1.  The  collection  includes  the  decisions  on  the 
protection  of  patents,  useful  models  and  trademarks. 
Trademarks  The  law  for  the  protection  of  trademarks  (Gesetz  zum 
Schutze  der  Warenbezeichnungen)  of  Ma)'  12,  1894,  was  trans- 
lated into  English  in  the  book  of  Reitzenbaum,  supra.  The 
most  important  provisions  of  the  act  are  mentioned  at  pages 
176-180  of  Singer's  book,  supra.  There  are  two  leading  works 
on  the  subject.  One  is  by  Dr.  C.  Finger,2  judge  of  the  court 
of  appeal  in  Calmar,  the  able  expounder  of  the  law  of  unfair 
competition,  and  the  other  by  Prof.  Kohler.3  Both  are  second 
editions,  the  one  by  Finger  appearing  in  1906,  and  the  work 
by  Kohler  in  1910. 
unfair  Com-     fne  term  "unfair  competition"  has  made  its  appearance  in 

petition 

American  law  only  within  the  last  fifteen  or  twenty  years.  An 
article  by  Oliver  R.  Mitchell  in  Volume  10  of  the  Harvard  Law 
Review  (January,  1897),  pages  275-98,  discusses  the  American 
cases  on  the  subject.  The  term  includes  all  the  methods 
used  to  appropriate  or  destroy  the  good  will  of  another's 
business  by  methods  of  deception.     The  Germans  have  long 

'Gareis,   Karl.     Die  patentamtlichen  und   gerichtlichen   entscheidun- 

gen  in   patentsachen,   hrsg.    von   Dr.  Karl  Gareis  .  .  .  Berlin,  C. 

Heymann,  1881-1906.     15  v.     v.  16,  edited  by  Julius  Magnus,  1911. 
-Finger,   C.     Das  reichsgesetz   zum   schutz   der  warenbezeichnungen, 

vom.  12     v.  1894.     2d  ed.     Berlin,  F.  Yahlen,  1906.     606  p. 
3  Kohler,    J.     Warenzeichenrecht.     Zugleich    2    auf.    des    rechts    des 

markenschutzes     m.     beriicksichtigung     auslandiseher     gesetzge- 

bung.     Miinchen,  Bensheimer,  1910.     272  p. 


UNFAIR   COMPETITION  95 

recognized  this  serious  danger  of  modern  commercialism  and 
their  act  of  May  27,  1896,  for  the  suppression  of  unfair  com- 
petition {Bekampfung  des  unlauteren  Wettbewerbs)  contains 
stringent  enactments  against  all  formsof  commercial  deception. 
This  law,  together  with  the  Trademark  Act  of  May  12,  1S94, 
has  the  double  purpose  of  preventing  imposition  upon  the 
public  and  protecting  private  business  interests.  It  prevents 
all  kinds  of  improper  advertising  and  false  assertions  with 
respect  to  one's  own  goods.  Germany  was  the  first  country  to 
legislate  against  this  source  of  public  injury  and  unfortunately 
has  as  yet  been  followed  by  very  few  countries.  In  England 
and  America  we  treat  the  direct  attacks  on  a  competitor's 
goods  or  credit  as  libel  or  slander  of  title.  In  Germany  this  law 
of  Unfair  Competition  deals  fully  with  the  matter.  The  act 
of  Mav  27,  1896,  as  amended  June  7,  1909,  deals  with  (a) 
false  assertions  as  to  one's  own  goods,  (b)  false  weights,  meas- 
ures and  quantities  of  goods,  (c)  slander  of  credit  of  a  person 
or  his  goods,  (d)  privileged  communications,  (e)  trade  names, 
(/)  business  or  trade  secrets,  (g)  procedure.  J.  F.  Iselin  in 
the  Law  Quarterly  Review,  volume  13  (1S97),  pages  156-164, 
published  a  useful  analysis  of  the  act  of  May  27,  1896.  The 
amending  act  of  1909,  which  is  very  important,  is  briefly  de- 
scribed in  the  March,  1 91 1 ,  number  (pp.  327-28)  of  the  Journal 
of  the  Society  of  Comparative  Legislation. 

The  leading  work  on  the  subject  is  that  by  Christian  Finger  ' 
referred  to  above,  the  fourth  edition  of  which  appeared  in 
191 1.  Another  work,  more  voluminous,  but  somewhat  less 
useful,  is  that  by  Judge  Adolf  Lobe.2  It  is  to  be  in  four 
volumes,  the  second  of  which  lias  not  yet  been  published. 
It  has  the  disadvantage  of  not  taking  into  account  the  pro- 

1  Finger,  Ch.  Reichsgesetz  gegen  den  unlauteren  wettbewerb  von  7 
Juni  1  yog.    4th  ed.  Berlin,  Vahlen,  1911. 

-'  U>be,  Adolf.  Die  bekampfung  des  unlauteren  wettbewerbs.  Leip- 
zig, VVeich,  1907.     4  v.   of  which  v.  2  not  yet  published  1 


96         GUIDE  TO  THE  LAW  OF  GERMANY 

visions  of  the  new  law  of  June  7,  1909.  Two  recent  smaller 
commentaries  on  the  subject  will  be  found  useful — the  one  by 
Ludwig  Fuld,1  the  other  by  Dr.  Weiss.2  The  British  Blue 
Book,  Cd.  5531,  contains  the  foreign  laws  in  force  to  prevent 
the  sale  or  importation  of  goods  bearing  a  false  indication 
of  origin.  The  food  inspection  laws  for  the  protection  of  the 
public  against  impurities,  are  the  subject  of  a  work  by  Lebbin  3 
and  Baum,  a  chemist  and  lawyer  respectively,  of  Berlin.  The 
food  laws  and  legislation  of  Germany  are  collected  in  a 
volume  recently  published  (1912)  by  K.  v.  Buchka.4  The 
Imperial  German  Meat  Inspection  Law  of  June  3,  1900,  was 
translated  into  English  in  a  small  pamphlet  in  1904.5 

General  works  on  the  protection  of  industrial  property 
were  published  by  Prof.  Osterrieth G  and  Prof.  Allfeld.7 
Osterrieth's  Lehrbuch  is  a  standard  work.  Allfeld's  is  simply 
an  outline  presenting  the  law  of  patents,  useful  models, 
trademarks  and  unfair  competition,  without  annotations.  A 
collection  of  articles  by  German  lawyers  on  this  subject  was 
published  in  1909  as  a  " Festgabe"  or  "jubilee  volume,"  on 

1  Fuld,  Ludwig.     Kommentar  zum  reichsgesetz  gegen  den  unlauteren 

wettbewerb  von  7  Juni  1909.     3d  ed.     Hannover,  Helwing,  1909. 

653  P- 

2  Weiss,  Chr.      Gesetz  gegen  den  unlauteren   wettbewerb   von   7   Juni 

1909.     2d  ed.     Miinchen,  Schweitzer,  1910.     404  p. 

3  Lebbin,  G.  and  Baum,  G.     Deutsches  nahrungsmittelrecht.      Berlin, 

1907.     2  v. 

4  Buchka,  K.  v.    Die  Nahrungsmittelgesetzgebung  im  Deutschen  Reiche. 

Eine  sammlg.  der  gesetze  u.  wichtigsten  verordngn.,  betr.  den 
verkehr  m.  nahrungsmitteln,  genussmitteln  u.  gebrauchsgegenstan- 
den,  nebst  den  amtl.  anweisgn.  zu  ihrer  chem.  untersuchg.  2.  aufl. 
Berlin,  J.  Springer,  1912.  294  p. 
6  The  imperial  German  meat  inspection  law.  An  act  concerning  the 
inspection  of  slaughtered  cattle  and  of  meat,  June  3,  1900.  m.  p. 
1904). 

6  Osterrieth,    A.      Lehrbuch   des   gewerblichen   rechtsschutzes.      Leip- 

zig, Deichert,  1908.     544  p. 

7  Allfeld,      Philipp.      Grundriss      des      gewerblichen      rechtsschutzes. 

Leipzig,  G.  A.  Glochnor,  1910.     220  p. 


COMMERCIAL   CODE  97 

the  occasion  of  Prof.  Kohler's  sixtieth  birthday.  The  col- 
lection bears  the  title  Studien  zur  jorderung  des  gewerblichen 
rechtsschutzes.1 

Several  periodicals  on  industrial  property  are  important 
enough  to  warrant  mention.  The  Zeitschrijl  fur  indus- 
irierecht,1  published  at  Berlin,  is  now  in  its  sixth  year.  The 
periodica]  Zeitschrijl  fur  gewerblichen  rechtsschutz?  edited  by 
P.  Schmidt,  is  continued  by  the  Gewerblicher  rechtsschutz  uml 
urheberrecht  published  at  Berlin,  now  in  its  sixteenth  year. 
An  annual  volume  published  at  Berlin  by  the  International 
Association  for  the  Protection  of  Industrial  Property  is 
important.'' 

COMMERCIAL  LAW 

COMMERCIAL   CODE. 

The  necessity  for  uniformity  in  the  field  of  commercial  law  History 
became  apparent  when  Germany  was  still  in  the  throes  of  polit- 
ical discord.  The  Bills  of  Kxchange  Act  of  1849  and  the 
Commercial  Code  of  1861  were  the  first  important  products 
of  codification  in  modern  Germany.  In  1866  this  code  was 
adopted  in  all  the  German  States  and  later  became  the  law  of 
the  Empire.  When  the  Civil  Code  was  enacted  in  1896  many 
rules  which  had  previously  been  applicable  to  commercial 
transactions  were  embodied  in  the  Civil  Code,  and  it  became 
accessary  to  recast  the  Commercial  Code.     Numerous  statutes, 

1  Studien     zur     fordertmg     des     gewerblichen     rechtsschutzes.     Josef 

Kohler  als  Pestgabe  zum  <>o.  geluirtstage  zugecignet  von  deutschen 

praktikem.     Berlin,  Hey  maim,  iqoq.     507  p. 
-'  Zeitschrift  fur  industrierecht,  Hrg.  v.  H.  Tolksdorf,  Dr.  Julius  Eph- 

raim,  u  Dr.  Paul  Alexander- Katz.     Berlin,  Issleib,  1906  and  cont. 
:l  Zeitschrift    fur   gewerblichen    rechtsschutz.     Hrsg.    v.  P.   Schmidt 

Munchen,    Oldenburg,    1802  95,    Continued  under  title  Gewerb 

licher  rechtsschutz  uml   urheberrecht.      Hrsg.    v.    A.    Osterrieth. 

Berlin,  Heymann,  [896  and  cont 
* Jahrbuch  der   mternationalen    vereinigung  fur  gewerblichen   rechts- 

schut/.     Berlin,  Heymann,  1897  and  cont. 

29;  -7 


98         GUIDE  TO  THE  LAW  OF  GERMANY 

such  as  the  Stock  Corporation  Act  of  1884,  had,  moreover, 
modified  important  provisions  of  the  1861  code.  The  Com- 
mercial Code  now  in  force  was  enacted  May  10,  1897,  and  went 
into  effect  January  1,  1900.  Dr.  Emil  Kaufmann  *  explains 
the  differences  between  the  old  and  the  new  codes  in  a  book 
published  in  1900.  The  German  Commercial  Code  (together 
with  a  number  of  statutes  dealing  with  specific  matters)  sup- 
plements the  Civil  Code  and  in  some  respects  modifies  its  pro- 
visions in  so  far  as  they  apply  to  certain  classes  of  transactions. 

The  Commercial  Code  contains  the  rules  relating  to  mer- 
cantile traders,  mercantile  associations  and  commercial  trans- 
actions only  in  so  far  as  they  differ  from  the  general  rules.  It 
is  therefore  necessary  in  every  case  to  ascertain  the  general 
rule  as  well  as  that  laid  down  in  the  Commercial  Code.  Thus, 
as  Dr.  Schuster  points  out,  the  law  relating  to  mercantile 
unlimited  partnerships,  in  so  far  as  it  does  not  differ  from  the 
general  partnership  law,  has  to  be  looked  for  in  sections 
705-740  of  the  Civil  Code  and  the  law  relating  to  mercantile 
sale  of  goods,  in  so  far  as  it  does  not  differ  from  the  general  law, 
has  to  be  looked  for  in  sections  433-458  of  the  Civil  Code. 
Again,  the  provisions  in  the  Commercial  Code  relating  to 
the  form  of  agreements,  suretyship,  interest,  title  to  goods, 
instruments  to  bearer,  pledge  and  lien,  etc.  are  only  supple- 
mental to  the  various  rules  on  these  subjects  contained  in  the 
Civil  Code. 

The  Commercial  Code  is  divided  into  four  books.  Book  I 
is  entitled:  Commerce  in  general;  Book  II,  Trading  com- 
panies and  dormant  partnerships;  Book  III,  Commercial 
transactions;  and  Book  IV,  Maritime  commerce. 

Book  I  is  divided  into  eight  sections,  which  deal  with  the 
following  subjects:  mercantile  traders,  the  mercantile  register, 

1  Kaufmann,  Emil.     Die  wesentlichen  unterschiede  des  alten  und  neuen 
handelsgesetzbuehs     .     .     .     Berlin,  W.  Moeser,  1900.     204  p. 


COMMERCIAL   CODE  99 

firm  names,  mercantile  books  of  account,  power  of  procura- 
tion and  agency,  mercantile  clerks  and  apprentices,  agents 
and  brokers. 

Book  II  is  divided  into  five  sections.  The  first  deals  with 
unlimited  partnership.  In  this  section  are  discussed  the  for- 
mation of  the  partnership,  the  mutual  rights  and  liabilities  of 
the  partners,  the  legal  position  of  the  partners  in  relation  to 
third  parties,  the  dissolution  of  the  partnership  and  the  retire- 
ment of  partners,  liquidation  and  the  balancing  of  accounts 
on  dissolution,  and  prescription. 

Section  2  is  concerned  with  the  limited  partnership  or  com- 
mandite association. 

Section  3  deals  with  the  stock  company  and  includes  among 
other  matters  the  legal  relationship  of  the  company  and  its 
shareholders,  its  internal  organization  and  management,  its 
dissolution,  and  penal  provisions. 

Section  4  deals  with  the  commandite  stock  company;  and 
section  5  with  the  dormant  partnership. 

Book  III,  which  deals  with  commercial  transactions,  is 
divided  into  seven  sections.  The  first  contains  general  pro- 
visions; the  second  covers  mercantile  purchase  and  sale;  the 
third,  commission  business  and  agency;  the  fourth,  forward- 
ing agency;  the  fifth,  warehousing;  the  sixth,  the  business  of 
carriers  by  land;  and  tin-  seventh,  the  carriage  of  goods  and 
persons  by  rail. 

Maritime  commerce  is  dealt  with  in  Book  IV  of  the  Com- 
mercial Code  (infra). 

The  literature  on  commercial  law  is  presented  by  title  only,    c*nei*i  ut- 

,  r.iture 

but  very  exhaustively,  by  Prof.  Karl  I.ehmann  of  Rostock  in 
tlte  introduction  to  his  work  on  the  commercial  law  of  Germany 
in  the  great  series  Handelsgeseize  des  erdballs,  the  whole  of 
which  is  soon  to  appear  in  an  English  edition.  Alfred  F. 
Schuster,  .1  son  of  |)i    Ernesl  J   Schuster,  lias  recently  trans- 


IOO        GUIDE  TO  THE  LAW  OF  GERMANY 

lated  the  Commercial  Code  into  English.1  From  all  points  of 
view,  faithfulness  of  translation,  style,  annotations  and  refer- 
ences to  related  codes  and  statutes,  it  is  a  much  superior  work 
to  Piatt's  English  translation  of  the  Commercial  Code,2  pub- 
lished in  1900.  Dr.  E.  Schuster  has  written  an  introduction 
to  his  son's  book.  A  useful  reference  work  dealing  with  the 
entire  commercial  legislation  of  Germany  is  the  one  edited  by 
the  late  Prof.  Emil  Friedberg,3  of  Leipzig,  the  ninth  edition  of 
which  was  published  in  1908.  In  the  form  of  a  text  with 
notes  it  covers  the  code,  all  commercial  law  contained  in  the 
procedural  codes,  the  Penal  Code,  the  Bankruptcy  Act,  and 
the  Industrial  Code,  all  financial  laws  concerning  banking  and 
taxation  of  various  kinds,  the  law  of  patents,  copyright,  bills 
of  exchange,  and  checques,  and  in  fact  the  law  covering 
practically  every  subject  which  in  the  remotest  way  partakes 
of  the  nature  of  a  commercial  transaction,  together  with  the 
laws  of  the  States  of  the  Empire  carrying  out  and  into  effect 
such  sections  and  portions  of  commercial  law  as  were  left  within 
their  jurisdiction.  A  good  translation  into  French  of  the  com- 
mercial legislation  of  Germany  was  edited  by  Paul  Carpentier,4 
published  in  1901.  There  are  translated  in  it  the  Commercial 
Code,  the  Bills  of  Exchange  Act  as  promulgated  by  the  North 
German  Federation  on  June  5,  1869  (the  new  Bills  of  Exchange 
Act  of  June  3,  1908,  is,  of  course,  not  included),  and  the 
Bankruptcy  Act  of  February  12,  1877,  as  amended  May  17, 
1898,  together  with  minor  laws  of  a  commercial  character. 

1  Germany.     The  German  Commercial  code,  tr.  and  briefly  annotated 

by  A.  F.  Schuster,  with  an  introduction  by  E.  J.  Schuster  .  .  . 
London,  Stevens  &  Sons,  1911.     280  p. 

2  Germany.     The  commercial  code  for  the  German  Empire.     Tr.  from 

the  official  text  by  Bernard  A.  Piatt  .  .  .  London,  Chapman  & 
Hall,  1900.     370  p. 

3  Friedberg,   Emil.     Die  handelsgesetzgebung  des  Deutsehen  Reiches. 

othed.     Leipzig,  Veit  &  Comp.,  1908.     1134P. 

4  Carpentier,  Paul.     Legislation  commerciale  de  l'Allemange.     Code  de 

commerce  mis  en  vigueur  en  iqoo;  loi  sur  le  change;  loi  sur  la 
faillite;  texte,  annotations,  jurisprudence,  droit  compare  .  .  .  Paris, 
A.  Chevalier-Marescq,  1901.     579  p. 


COMMERCIAL    LAW  ioi 

There  are  a  great  many  texts  and  small  annotated  editions  of 
the  code.  That  in  the  Gultentag'sche  Sammlung  is  as  good 
as  any. 

There  are  a  number  of  important  commentaries  on  the  Com- 
mercial Code,  the  best  known  of  which  is  that  by  Staub,1 
known  all  over  the  Empire  as  Staub' s  Kommeniar;  the  ninth 
edition,  edited  by  Konige,  Pinner,  and  Bondi,  will  be  com 
pleted  before  the  end  of  1912.  Hook  IV.  on  maritime  law, 
is  omitted.  Another  commentary  in  high  repute  among 
German  lawyers  is  that  by  Duringer  and  Hachenburg  :  which 
likewise  omits  maritime  law.  It  does,  however,  take  full 
account  of  such  commercial  transactions  as  have  been  partly 
dealt  with  in  the  Civil  Code;  for  example,  sale,  work  and 
delivery,  etc.  A  second  edition  began  to  appear  in  1908  and 
is  expected  to  be  completed  in  1912.  Makower  3  is  the  author 
of  another  extensive  commentary  in  three  volumes,  the  thir- 
teenth edition  of  which  began  publication  in  1908. 

Several  learned  treatises  on  commercial  law  have  made  their 
appearance,  the  most  celebrated  of  which,  although  not 
the  most  practical  at  the  present  time,  is  that  by  Prof.  L. 
Goldschmidt,  founder  of  tin  well-known  periodical,  Zeitschrijt 
fur  </d*  gesammte  handelsrecht.  His  Handbuch  dei  handels- 
rechls  *  (pt.  i,  .^d  ed.,  1891 ;  pt.  2,  2d  ed.,  1883)  treats  of  the 
history  of  commercial  law,  its  basic  principles  and  the  subject 
matter  of  commerce  and  money.     Barring  Huvelin's  French 

1  Staub,  Hermann.  Staub '3  Kommentar  711m  handelsgesetzguch.  (>tli 
ed.,  bcarb.  unter  benutzung  des  handschriftlichen  nachlasses  von 
Heinrich  Konige  .  .  .  F.  Bondi  .  .  .  Albert  Pinner  .  .  .  Berlin, 
J.  Guttentag,  1912.  Complete  in  2  v. 
Duringer,  A.  Das  Handelsgesetzbuch  vom  to.  mai  1897  (mit  ausschluss 
des  seerechts),  erlautert  von  Dr.  A.  Duringer  .  .  .  .  u  Dr.  M. 
Hacbenburg  .  .  .  2d  edition.  Mannheim,  |.  Bensheimer,  1908   1912 

3  v- 
*  Makower,  H.    Handelsgesetzbuch    mil     kommentar,    hrsg.    von    II 

Makower  .    .    .   nnd  F.  Makower  i  ;th  ed.   Berlin.    |    Gutti 

1908.     3  V.  in  4. 
1  Goldschmidt,  L.    Handbuch  des  handelsrechts,     Pt.  I,  3d  ed.     Stutt- 
gart, Enke.  180 1 :  Pt.  II.  2ded.  1883. 


102        GUIDE  TO  THE  LAW  OF  GERMANY 

treatise,  it  is  probably  the  leading  work  on  the  history  of  com- 
mercial law  (Universalgeschichic  des  Handelsreckts).  Gold- 
schmidt's  System  des  handelsreckts,1  the  fourth  edition  of 
which  appeared  in  1892,  is  also  important,  although  based  on 
the  old  code.  The  best  treatise  on  modern  commercial  law  is 
generally  considered  to  be  that  of  Prof.  Konrad  Cosack  -  of 
Bonn  University.  The  seventh  edition  was  issued  in  1909-10. 
A  French  translation  of  this  work  (from  the  sixth  edition)  was 
undertaken  by  the  enterprising  firm  of  Giard  &  Briere,3  to 
whom  the  French  nation  is  indebted  for  translations  of  many 
excellent  treatises.  The  translation  appears  in  three  volumes. 
Prof.  Karl  Lehmann,4  of  Rostock,  is  the  author  of  a  brilliant 
treatise  on  commercial  law  (2d  ed.,  191 1).  It  was  founded 
originally  on  lectures  and  is  written  from  an  historical  and 
economic  standpoint;  it  is  constructive  in  character.  Mari- 
time law,  the  law  of  bills  of  exchange,  and  other  forms  of 
negotiable  paper,  and  the  law  of  private  insurance,  are  in- 
cluded. A  somewhat  earlier  treatise,  of  scholarly  value,  is 
that  by  Behrend,5  the  second  edition  of  which  appeared  in 
two  volumes  in  1896.  A  short  textbook  on  commercial  law, 
including  bills  of  exchange  and  maritime  law,  by  Prof.  Karl 
Gareis,"  was  published  in  its  eighth  edition  in  1909. 

1  Goldschmidt,  L.    System  des  handelsrechts.    4th  ed.    Stuttgart,  Enke, 

189- .     293  p. 

2  Cosaek,  Konrad.     Lehrbuch  des  handelsrechts  .   .  .     7th  ed.     Stutt- 

gart, F.  Enke,  1909-10.     780  p. 

3  Cosack,  K.     Traite  dc  droit  commercial,  tr.  sur  la  0.  ed.  allemande 

(1003)  Par  Leon  Mis.      .  .  .      Preface  de   M.   Ed.  Thaller.      Paris, 
V.  Giard  &  E.  Briere,  1904-11107.     3  v. 

4  Lehmann,  Karl.     Lehrbuch  des  handelsrechts      _il  edition.     Leipzig, 

Veit  &  Comp.,  1911.     ii22p. 
6  Behrend,  J.  Fr.   Lehrbuch  des  handelsrechts.     2d  ed.     Berlin,  Gut- 

tentag,   1896.     2  v. 
0  Gareis,  Karl.     Das  deutsche  handelsrecht.     8th  ed.     Berlin.  J.  Gutten- 

tag,  1909.     724  p. 


STOCK    CORPORATIONS  103 

The  leading  periodical  on  commercial  law  is  the  Zeiischrift 
fur  das  gesammte  handelsreckt1,  founded  in  1858  by  the  eminent 
authority,  Prof.  L.  Goldschmidt  and  now  edited  by  Prof.  Karl 
Lehmann  and  others.  The  Leipziger  zeitschrift  fur  handels-, 
konkurs-,  u  versicherungswesen,2  founded  in  1907,  and  edited 
by  A.  Diiringer  and  H.  Konige,  judges  of  the  supreme  court  at 
Leipzig,  and  Prof.  L.  Jaeger,  of  the  University  of  Leipzig,  is 
popular  with  the  members  of  the  bar  in  Germany. 

The    various    kinds    of    corporations    and    associations    of    -s,ock  CorP°- 

r  .it  ions 

natural  persons  for  business  purposes  are  dealt  with  in  Book  II 
of  the  Commercial  Code  and  in  some  related  statutes.  The 
most  common  form  of  corporation  is  that  of  the  stock  corn- 
pan  v,  the  law  governing  which  had  undergone  several  amend- 
ments previous  to  its  incorporation  in  the  new  code  of  1897. 
Fairlv  good  commentaries  on  the  law  of  stock  corporations 
are  those  of  Albert  Pinner3  and  Robert  Esser,4  both  published 
in  1899.  The  best  commentaries,  however,  are  contained  in 
the  general  works  of  Staub  and  Diiringer  (supra,  p.  101).  Dr. 
Riesser,5  of  Berlin,  published  a  monograph  in  1899  which  is  a 
practical  and  critical  discussion  of  the  effect  of  the  new  legis- 
lation of  1897  and  (898,  especially  the  Commercial  Code,  on 
tin  existing  law  governing  stock  corporations.  The  organiza- 
tion and  incorporation  of  stock  companies  was  the  subject  of  .1 
work  by  Dr.  Silbernagel,8  published  in  1907.      It  treats  Ger- 


1  Zeitschrift  fur  das  gesammte  handelsrecht.     Stuttgart,   F.   Knkc.  1858 

ami  * 
Leipziger    zeitschrift    fur   handels    konkurs-    u    versicherungswesen 

Hrsg.  von   A.   Diiringer,   Prof.   E.   Jaeger  11   H.   Konige.      Mum  bi  11 

Schweitzer.  1007  and  cont. 
1  Pinner.  Albert.     Das  deutsche  aktienrecht.      Berlin,   H.  \V    Muller. 

1899.     382  p. 
4  Esser,  Robert.     Die  aktiengesellschaft,  dargestelll  und  erlautert.     2d 

ed.     Berlin,  J.  Springer,  1899.     279  p. 
s  Riesser,     Die  m  uerungen  im  deutschen  aktienrecht      Berlin,  0.  I.ieb- 

111. mn.  [899.      -'  1  ;  ]i 
Silbernagel.     Die  griindung  der  akticngesellschaft.     Berlin,  Puttkam- 
mer  &  Muhlbrecht,  1907.     513  p. 


104        GUIDE  TO  THE  LAW  OF  GERMANY 

man,  Swiss,  French,  and  English  law  comparatively.  The 
best  work  on  the  general  subject  is  the  treatise  by  Prof.  Karl 
Lehmann  '  on  the  general  law  of  stock  corporations,  which 
appeared  in  two  volumes  in  1 898-1 904.  It  is  an  historical, 
comparative  and  constructive  study  of  the  law  of  stock  cor- 
porations in  its  theoretical  and  practical  aspects.  A  practical 
work  on  the  subject  was  published  by  Dr.  Alexander-Katz.2 
It  treats  especially  of  the  new  code  and  the  legislation  relating 
to  it. 
commandite      Another  important  form  of  business  corporation  dealt  with 

Company 

by  the  Commercial  Code  is  the  "commandite"  company 
{Kommanditgesellschaft).  This  is  a  form  of  association 
neither  a  partnership  nor  an  ordinary  stock  corporation,  in 
which  some  of  the  members  or  stockholders  are  liable  to 
creditors  to  the  amount  of  their  shares  only,  and  the  others, 
the  partners,  are  liable  in  solido  as  are  members  of  an  ordinary 
partnership.  This  form  of  association  was  provided  for 
originally  in  an  act  of  July  18,  1884,  which  has  been  but  little 
changed  by  the  code.  Dr.  Victor  Ring,3  judge  of  the  superior 
court  in  Berlin,  published  a  commentary  on  the  law  of  1884 
(2d  ed.,  1893).  Corporation  law  from  the  point  of  view 
of  the  treasury  balance,  in  its  relation  to  the  stockholders  and 
creditors  on  the  one  hand  and  to  the  State  in  its  taxing, 
financial  and  administrative  aspects  on  the  other,  constitutes 
the  subject  of  a  very  able  treatment  of  all  kinds  of  corpora- 

1  Lehmann,   Karl.      Das  recht    der    aktiengesellschaften.      Berlin,    C. 

Hermann's  verlag,  1898-1904.     2  v. 

2  Alexander-Katz.   Hugo.      Die    aktiengesellschaft    unter    dem    neuen 

aktiengesetz.      5  und  6.     tausend.      Berlin,  H.  S.  Hermann.  1899. 
241  p. 

3  Ring,    Viktor.     Das    reichsgesetz    betreffend     die     kommanditgcsell- 

schaften  auf  aktien  und   die  aktiengesellschaften.     2ded.      Berlin, 
C.  Heymann,  1893.     756  p. 


LIMITED   LIABILITY    PARTNERSHIP  I<>5 

tions  by  Dr.  Hermann  Rehm,1  Professor  at  Strassburg.     The 

work  was  published  in  Munich  in  [903. 

The  limited  liability  partnership  {G  tellschaft  mii  beschrdnk-  u«nit»«»- 
ter  Haftung)  was  provided  for  originally  in  the  act  of  April  ship 
20,  1892,  reenacted  with  amendments  in  1898.  The  statute 
is  translated  in  Appendix  B  (pp.  235-265)  of  A.  P.  Schuster's 
recent  translation  of  the  Commercial  Code  {supra).  A 
detailed  discussion  of  the  provisions  of  that  statute  is  under 
taken  by  Julius  Hirsch  field  in  the  Law  Quarterly  Review,  volume 
9  (January ,  1  s<>;,  | .  pages  62-69.  The  law  gives  a  small  number 
of  partners  the  privilege,  under  certain  restrictions,  of  acting 
as  a  corporation  with  limited  liability.  The  leading  com- 
mentary on  the  subject  is  that  by  the  late  Dr.  Staub,2  the 
third  edition  of  which,  edited  by  Dr.  Hachenburg,  was  pub- 
lished in  1909.  Besides  an  exhaustive  commentary,  an 
appendix  contains  thestat  utes  of  the  States  of  Germany  on  the 
taxation  of  these  limited  liability  partnerships.  A  useful 
work  on  the  subject  is  edited  by  Parisius  and  Criiger  :  (5th  ed., 
1911). 

The  present    law  concerning  cooperative  societies  (Erwerb  «rative 

uml  Wirtsckaftsgenossenschaften)  was  enacted  May  1,  1889, 
and  was  amended  bj  ids  of  1896  and  189S.  It  covers  the 
questions  of  loans  to  members,  the  cooperative  purchase  or 
sale  of  raw  materials  and  manufactured  goods,  and  other 
joint  enterprises.     The  members  have  only  limited  liability. 

1  Rehm,     Hermann.     Die     bilanzen     der     aktiengesellschaften     and 

gcsellschaiten  m.  1>.  h.,  kommanditgesellschafti  n  ,mf  aktien,  einge- 
tragenen  genossenschaften,  versicherungsvereine  auf  gegenseitig- 
keit,  li \  1 11  it heken-  und  notenbanken  und  handels- gesellschaftes 
iiberhaupt.  Miinehen,  J.  Schweitzer  verlag  (A.  Sellier),  190.5.  938  p. 

2  Staub,  Hermann.     Staub's  Kommentar    zum    gesetz,    betreffend    die 

gesellschaften   mil     beschrankter    haftung.     :  ed,    bearb.    von   dr 
Max  Hachenburg.     Berlin,  I    Guttentag,  icjchj.     7;.'  p. 
1  Parisius.  I.,  ami  Criiger,  H.     Das  reichsgesetz  betreffend   die  gesell 
schaftenmit  bescbiftnkter  haftung.     5th  ed.by  Criiger.  Berlin, Gut- 
tentag, 1911.     503  p. 


Io6        GUIDE  TO  THE  LAW  OF  GERMANY 

The  leading  work  on  the  subject  is  the  commentary  by 
Parisius  '  and  Criiger  (7th  ed.,  191 1).  Certain  decrees  regulat- 
ing the  operations  and  administration  of  these  societies  were 
promulgated  by  the  Empire  and  by  the  various  States  and  are 
included  in  the  second  and  third  parts  of  the  book.  It  pre- 
sents the  history  of  the  sections  of  the  act,  analyzed  and  anno- 
tated. Another  commentary  on  the  same  law,  taking  particu- 
lar account  of  the  legislation  of  1898,  with  models  of  forms 
and  corporate  by-laws,  is  that  by  Dr.  Richter,2  the  third 
edition  of  which  was  published  in  1900. 

RAILROAD   LAW 

The  business  of  carriers  and  the  conveyance  of  goods  and 
persons  by  rail  is  largely  regulated  by  sections  425-473  of 
the  Commercial  Code.  An  important  commentary  on  the 
German  law  concerning  the  carriage  of  goods  was  published 
by  Dr.  Georg  Eger,3  a  leading  authority  on  railroad  law.  It 
is  based  on  the  old  commercial  code,  but  is  still  most  useful. 
Germany  is  a  member  of  the  international  railroad  union. 
The  international  agreement  of  October  14,  1890,  as  amended 
June  16,  1S98,  with  the  Berne  amendments  of  July  4-18, 
1905  and  September  19,  1906,  is  the  subject  of  another  prom- 
inent work  by  Dr.  Eger.' 

An  important  special  statute  regulating  the  business  of 
railroads  was  enacted  on  December  23,  1908,  in  force  April 
2i,   1909,  concerning  especially  the  liability  of  railroads  for 

1  Parisius,  Ludolf.  Das  reichsgesetz,  betreffend  die  erwerbs-  und 
wirtschaftsgenossenschaf ten .  7th  ed.  bearb.  von  dr.  Hans  Criiger. 
Berlin,  J.  Guttentag,  1911.     712  p. 

''  Richter,  Otto.  Das  reichsgesetz  betreffend  die  erwerbs-  und  wirt- 
schafts-genossenschaften.     3ded.     Leipzig,  G.  Weigel,  1900.     644 p. 

3  Eger,  Georg.     Deutsches  frachtrecht  mit  besonderer  beriicksichtigung 

des   eisenbahnfrachtrechts.      2d   ed.    Berlin,    Heymann,    1887-1892. 
3  v.  and  supplement. 

4  Eger,    Georg.      Das    internationale    ubereinkommen    iiber   den    eisen- 

bahnfrachtverkehr.    3d  ed.     Berlin,  Guttentag,  1909.     536  p. 


AUTOMOBILES  107 

negligence  resulting  in  loss  or  damage  to  goods.  This  statute 
replaces  previously  existing  regulations.  The  leading  work  on 
the  subject  is  thai  by  Dr.  Georg  Eger  '  (3d  ed.,  1910).  An- 
other work  on  the  liability  of  railroads  for  damage  to  goods, 
written  especially  from  the  point  of  view  of  the  new  act  of 

1908,  was  published  by  Dr.  Ernst  Rundnagel,2  privy  councillor. 
Hi-  discusses  the  subject,  keeping  in  mind  its  relation  t<>  the 
relevant  sections  of  the  Commercial  Code  and  to  the  interna- 
tional railroad  agreement  of  October  14,  1890.  Dr.  Richard 
Seuckpiehl  3  is  the  author  of  another  work  on  the  law  of  rail- 
road transportation,  Eiseribahntransportgeschajt.  It  consti- 
tutes the  fifth  volume  of  his  larger  work  Verkekrsreckt.  Dr. 
Eger  edits  an  important  collection  of  decisions  on  railroad  law, 
under  the  title  Eisenbahnrechttiche  entscheidungen,4  which  first 
began  to  appear  in  1879.  After  volume  7,  short  articles  and 
bibliographic  notes  on  railroad  law  are  also  included  in  the 
publication. 

Closely  connected  with  the  law  of  carriers  is  the  law  con-    Automobiles 
cerning  traffic  with  motor  vehicles,  the  so-called  "automobile 
[Gt  setz  iiber  <A  u  Verkehr  mil  Kraftfahrzeugen)  of  May  ;,, 

1909,  as  supplemented  by  the  decree  of  the  Federal  Council  of 
February  .;.  1910.     Dr.  Georg  Eger,''  the  authority  on  the  law 
of   carriers,   also   wrote   an   exhaustive   commentary   on    this 
automobile   law.     A   useful   commentary   on   the   subject    is  . 
edited  by  two  attorneys  of  Frankfurt,  Neukirch  and  Rosen 

•rg.     Die  cisenbahnvcrkehrsordnung  vom  2,5  Dcz.  1008.         1 

cd.      Berlin.  J.  Guttentag,  mio.     628  p. 
'Rundnagel,   Krnst.     Die  haftung  der  eisenbahn  fur  verlust,   bescha 

'lining    und    lieferfristuberschreitung   nach   dcutschem  eisenbahu 

frachtrecht.    2d  cd.    Leipzig,  Dieterich,  1909.    314  p. 
1  Senckpiehl,   Rich.     Das  eisenbahntransportgeschaft  nach  deutschem 

recht.     Berlin,  G.  Everth,  1909.    493  p. 
*  Bisenbabnrechtliche    entscheidungen    und    abhandlungen.    v.    1 

[Oil.      Berlin.  C.  Hi  \  111. 11111.    Breslau,  J.  V.  Kern. 
'  Kger,  G.     Das  reichsgesetz    iiber    den   verkehr    mit    kraftfahrzeugen, 

Stuttgart,  Deutsche  Verlagsanstalt.   iyi  1.     (154  p. 


108  GUIDE   TO   THE   LAW   OF  GERMANY 

merer.1  In  its  arrangement,  it  follows  Staub's  commentary 
on  the  Commercial  Code.  The  decisions  on  the  Accident 
Liability  Act  of  1871  are  noted  and  differences  between  the 
old  and  new  legal  conditions  pointed  out.  Besides  the  auto- 
mobile law,  all  related  laws  are  annotated  and  the  interna- 
tional rules  in  matters  of  tax  and  license  dues,  etc.,  are 
included. 

MARITIME    LAW 

The  greater  part  of  the  maritime  law  of  Germany  is  con- 
tained in  Book  IV  of  the  Commercial  Code.  This  portion  of  the 
code  is  divided  into  eleven  sections:  The  first  deals  with  gen- 
eral provisions;  the  second,  with  the  ownership  and  coowner- 
ship  of  vessels;  the  third,  with  the  master  of  the  vessel;  the 
fourth,  chartering;  the  fifth,  the  transportation  of  passengers; 
the  sixth,  bottomry;  and  the  seventh,  with  average,  which 
includes  general  and  particular  average.  Section  8  deals  with 
salvage  and  distress  at  sea;  section  9,  with  the  ships'  cred- 
itors. 

Section  10,  one  of  the  most  important  parts  of  Book  IV, 
deals  with  marine  insurance.  It  is  subdivided  into  seven 
titles,  of  which  the  first  deals  with  general  provisions;  the 
second,  with  the  declarations  of  the  assured  at  the  time  of 
drawing  the  contract;  the  third,  with  the  obligations  of  the 
assured  arising  out  of  the  contract;  the  fourth,  with  the  ex- 
tent of  the  risk;  the  fifth,  with  the  extent  of  damage;  tin- 
sixth,  with  the  payment  of  compensation;  and  the  seventh, 
with  the  cancelling  of  the  insurance  and  the  return  of  the 
premium. 

Section  1 1  of  Book  IV  deals  with  prescription. 

A  translation  of  Book  IV  of  the  Commercial  Code,  taking 
the  old  code  of   1861,  however,  as  its  basis,  is  printed  as  an 

'Neukirch.  A    &  Roscnmeyer,  A.     Kommentar  zum  Gesetz  iiber  den 
verkehr  mit  kraftfahrzeugen.     Halle,  Waisenhaus,  1910.     351  p. 


MARITIME    LAW  109 

appendix  (pp.  687-790)  to  E.  E.  Wendt's  Papers  on  maritime 
legislation  (3d  ed.,  London.  1888).  The  Seamen's  Act  (See- 
mannsordnung)  which  is  an  important  part  of  German  mari- 
time law,  is  likewise  translated  in  the  same  work,  pages  790 
et  seq.  Unfortunately  it  is  a  translation  of  the  old  act  of 
December  27,  1872,  which  was  changed  in  important  par- 
ticulars by  the  new  Seamen's  Act  of  June  2,  1902.  An  im- 
portant work  011  the  German  law  of  maritime  commerce  has 
been  published  in  both  German  and  English.  This  is  the 
book  of  Dr.  Alfred  Sieveking,1  of  Hamburg,  published  in 
London  in  1907.  It  treats  the  subject  of  maritime  commerce 
beginning  with  the  rules  concerning  the  shipment  and  the  legal 
relations  at  the  port  of  shipment,  followed  in  their  order  by 
the  rules  concerning  the  voyage  and  the  delivery  of  the  cargo. 
It  is  a  concise  treatise  and  covers  the  Seamen's  Act  of  June 
2,  1902,  but  omits  the  subject  of  marine  insurance,  found  in 
sections  778-900  of  the  Commercial  Code. 

An  excellent  commentary  on  this  fourth  book  of  the  Commer- 
cial Code,  also  excluding  marine  insurance  from  treatment, 
however,  is  that  by  Judge  Georg  Schaps,2  of  Hamburg,  which 
was  intended  to  supplement  Staub's  well  known  commentary 
on  the  Commercial  Code.  All  tin-  changes  made  in  Book  IV 
by  the  acts  of  June  2,  1902,  and  of  May  1  2,  1904,  are  noted  in 
the  appendix,  which  also  contains  the  maritime  provisions  of  all 
related  statutes.  The  omitted  portion,  covering  marine  in- 
surance, is  to  be  dealt  with  in  a  commentary  by  Dr.  Gustav 
Sieveking,  of  Hamburg,  and  published  as  a  supplement  to 
Schaps'  work.  A  collection  of  all  the  laws  and  statutes  con- 
cerning   maritime    law   is    contained   in    a   somewhat   bulky 


Sieveking,  Alfred      'tin-  German  law  relating  bo  the  carriage  of  kihxIs 

by  s<  .1      London,  Stevens  &  Suns,  1007.    .s^op. 
' Schaps,  Georg.      Has  deutsche  seerecht.     Berlin,  J.  Guttentag,   k;o6. 
93*  P 


IIO  GUIDE   TO   THE    LAW   OF  GERMANY 

volume,  edited  by  E.  Brodmann '  (Berlin,  1905).  Another  col- 
lection which  embraces  the  maritime  legislation  of  the  Em- 
pire is  that  by  Dr.  Ferdinand  Perels,2  the  eminent  authority 
on  maritime  law,  the  second  edition  of  which  was  published  in 
1908.  It  is  based  largely  on  his  Handbuch  des  attgemeinen 
seerechts,  published  in  1884.  All  regulations  concerning  the 
ocean-carrving  trade,  the  maritime  administrative  regulations, 
the  ordinances  and  decrees  relating  to  shipping,  the  coastal 
trade  and  deep-sea  fishing,  in  short,  all  the  maritime  legislation 
not  included  in  the  Commercial  Code,  is  brought  together  in 
the  volume.  A  rather  elaborate  commentary  on  German 
maritime  law  was  prepared  by  Lewis  and  Boyens,3  the  second 
volume  of  which  was  finished  in  1901.  It  is  incomplete,  as  it 
onlv  comes  down  to  article  733  of  the  code.  It  is  of  importance 
for  its  references  to  the  laws  of  other  maritime  nations. 
Naturallv,  it  does  not  cover  the  important  Seamen's  Act  of 
1902  and  other  laws  promulgated  after  its  publication.  A  well 
known  and  useful  treatise  is  the  Handbuch,4  in  two  volumes, 
published  as  a  part  of  the  Binding  series.  The  first  volume  is 
from  the  pen  of  Dr.  Rudolph  Wagner;  it  contains  a  general 
introduction  and  treats  of  the  persons  of  maritime  law,  the 
charterer,  the  broker,  the  master  and  crew,  etc.  Volume  2, 
written  bv  Prof.  Pappenheim,  of  Kiel,  is  divided  into  the  law 
of  things  and  the  law  of  obligations  in  maritime  law.  He  treats 
especially  the  question  of  ownership,  and  all  kinds  of  maritime 
contracts  and  liens.  The  new  Seamen's  Act  of  1902,  with  the 
other  maritime  statutes  passed  on  that  day,  together  with  the 

1  Brodmann,   E.     Die  seegesetzgebung  des  Deutschen  Reiches.     2d  ed. 

Berlin,  O.  Haring,  1905.     1124P. 
-  Perels,  Ferdinand.     Das  allgemeine  offentliche  seerecht  itn  Deutschen 

Reiche.     Berlin,  E.  S.  Mittler  und  sohn.  1908. 

3  Lewis-Boyens.     Das  deutsche  seerecht.      v.  I-II  11897-1901).     Incom- 

plete.    Leipzig,  Duneker  &  Humblot. 

4  Wagnerand  Pappenheim.    Handbuch  des  seerechts.     Leipzig,  Duneker 

&  Humblot,  1906.     2  v. 


INLAND    NAVIGATION  III 

amendments  of  May  23,  1903  and  May  12,  1904,  are  taken  into 
account. 

The  law  of  general  average  is  treated  in  three  large  volumes    General  Av- 

,  erase 

bv  Dr.  R.  Ulrich,1  only  volume  1  of  which  deals  strictly  with 
the  German  law.  Volume  2  covers  the  foreign  codified  laws 
on  general  average,  and  volume  3  deals  particularly  with  the 
British  and  American  rules.  The  York-Antwerp  rules  and  a 
comparative  table  are  included.  The  second  edition  was 
completed  in  1906.  A  collection  of  the  important  laws  on 
marine  insurance  was  published  by  Dr.  C.  Giitschow '-  in  19118. 
The  laws  are  treated  comparatively. 

The  law  of  inland  navigation  is  not  covered  by  the  Commer-     inland  Navi- 

gation 

rial  Code;  the  subject  is  governedby  a  special  statute  enacted 
on  June  15,  1895,  in  force  since  January  1,  1900.  As  this  is 
one  of  the  matters  concerning  water  laws  which  was  largely 
left  within  the  legislative  jurisdiction  of  the  German  States, 
a  complete  presentation  of  the  subject  is  impossible  without 
taking  account  of  the  State  laws.  The  work  by  Dr.  Max 
Mittelstein,9  the  second  edition  of  which  was  completed  in 
1903,  is  regarded  as  the  leading  work  on  the  subject.  Volume 
one  contains  the  Imperial  regulations,  and  volume  two  the 
State  regulations,  concerning  the  law  of  inland  navigation. 
The  important  decisions  on  maritime  law,  outside  of  those  of 
the  Supreme  Court,  are  those  of  the  Oberlandesgericht  at 
Hamburg,  published  in  the  I lanseatische  Gerichtszeitung  and  in 
the  Deutsche  Juristenzeitung  and  by  Abraham  in  his  Han- 
seatischf  1\'<  r/i/\/>n rhung. 

1  Ulrich,  R.     Grosse  haverci.     2d  ed.     Berlin,   E.   S.   Mittler  &  Sohn, 

1903-6.     3  v. 
'Giitschow,     C.      Vergleichende    zusammenstellung    dcr     wichtigeren 

seeversicherungsrechte.     Hamburg,  0.  Meissner,  [908 
'Mittelstein,   Max      Deutsches  binnenschiffahrtsrecht.     2d  ed.     I,cip- 

zig,  Rossberg,  1900-1903.     2  v. 


112  GUIDE   TO   THE    LAW   OF   GERMANY 

BILLS    OF    EXCHANGE 

The  matter  of  negotiable  instruments  is  largely  contained 
in  statutes  not  included  in  the  Commercial  Code.  The  Bills  of 
Exchange  Act,  the  first  subject  of  uniform  legislation  in  Ger- 
many, was  originally  adopted  on  May  i,  1849.  On  June  5, 
1869,  it  was  accepted,  together  with  the  "  Nurnberg  novels" 
or  amendments  of  April  13,  1861,  as  the  law  of  the  North- 
German  Federation,  and  became  the  law  for  all  Germany  in 
April,  1871.  Changes  were  effected  in  the  act  by  the  intro- 
ductory statutes  to  the  Code  of  Civil  Procedure  and  to  the 
Bankruptcy  Act  of  1877,  especially  as  to  statutes  of  limita- 
tions. The  Scandinavian  countries,  and  Switzerland,  Russia 
and  Holland,  have  adopted  the  German  Bills  of  Exchange 
Act  practically  verbatim.  An  English  translation  of  the  act 
in  its  unamended  form,  together  with  the  Nurnberg  novels,  is 
printed  in  volume  III,  pp.  2787-2808  of  Randolph's  Treatise 
on  the  law  of  commercial  paper  (St.  Paul,  1899).  The  act  of 
June  3,  1908,  effected  certain  changes  in  the  law,  especially 
making  protests  more  easy,  and  an  entirely  amended  Bills  of 
Exchange  Act  was  promulgated  on  that  day.  A  recent  work 
bv  Leader1  (London,  191 1)  contains  an  English  translation 
of  the  new  German  Bills  of  Exchange  Act  and  the  1908  law 
of  checques.  The  new  (seventeenth)  edition  of  Byles  on 
Bills  (London,  191 1)  also  contains,  in  appendix  3,  Leader's 
English  translation  of  that  act.  By  all  means  the  leading 
treatise  on  the  subject,  historical,  theoretical  and  dogmatic, 
is  that  bv  Prof.  Karl  Griinhut,-  of  Vienna,  which  appeared 
in  two  volumes  in  1897,  in  the  Binding  series.  The  new  act 
of    1908   is   necessarily    not    considered.      The    last    (eighth) 

1  Leader,  S.     The   German  law  of  bills  of  exchange  and  of  cheques. 

London,  Sweet  &  Maxwell,  1911.     34  p. 
'Griinhut,  Carl.  Wechselrecht.     Leipzig,  Duncker  &  Humblot,  1897.    2  v. 


cheques  113 

edition  of  Staub,1  the  best  commentary  on  the  act,  takes 
the  new  legislation  of  1908  and  the  decisions  up  to  191 1  into 
account.  Gareis2  is  the  author  of  a  good  work  on  the  sub- 
ject, which  includes  in  its  treatment  the  tax  law  of  July  15, 
1909. 

The  German  law  of  cheques  of  March  11,  1908,  was  inspired  Cheiues 
by  a  general  desire  to  popularize  the  use  of  that  form  of 
commercial  paper.  (See  art.  17  of  the  statute  introducing 
the  new  German  Commercial  Code.)  Leader's  recent  work 
(supra)  contains  a  translation  of  the  law  of  March  11,  1908. 
A  translation  of  that  act,  together  with  an  editorial  comment 
on  some  of  its  principal  features,  appeared  in  the  Banking 
Law  Journal,  volume  25  (1908),  pages  536-537.  551-558- 
An  analysis  of  the  act,  with  comparative  references  to  the 
German  Bills  of  Exchange  Act  of  1849,  appeared  in  volume 

2  (1909)  of  the  Annual  Bulletin  of  the  Comparative  Law 
Bureau,  pages  29-40,  from  the  pen  of  Prof.  E.  G.  Lorenzen. 
The  article  is  preceded  by  a  bibliographic  headnote  by  W.  W. 
Smithers,  citing  the  laws  of  other  countries  on  the  subject, 
with  special  reference  to  the  sections  of  the  respective  Com- 
mercial Codes  in  which  the  matter  is  dealt  with.  This  same 
statute  was  the  subject  of  an  article  by  Dr.  Ernest  Schuster 
(Journal  of  the  Society  of  Comparative  Legislation,  vol.  9, 
August,  1908,  pp.  79-83),  in  which  the  requirements  of  the 
new  act  are  compared  with  the  British  law  on  the  subject. 

A  useful  commentary  on  the  act,  by  Prof.  Ludwig  Kuhlen- 
beck,3  was  published  in  1908.  There  is  a  long  introduction, 
together  with  commentary,  notes,  and  forms.     Another  good 

1  Staub,  H.     Kommcntar  zur  wechselordnung.     Eighth  edition,     bearb. 

von  M.  Stranz.     Berlin,  J.  Guttentag,  1912. 
2Gareis,  Karl.     Die   allgemeine   deutsche    wcchselordnting   nchst  dem 
wechselstempselgesetz  von  15.  7.  iqoq.     8th  ed.     Munchen,  1010. 

3  Kuhlenbeck,    L.     Das    deutsche    schcckgesctz.     Hreslau   &   Leipzig, 

Langcwort,  1908.     139  p. 

297  74°— 12 S 


114        GUIDE  TO  THE  LAW  OF  GERMANY 

book  on  the  subject,  by  Dr.  Walter  Conrad,1  contains  refer- 
ences to  foreign  legislation  (principally  derived  from  the 
Handel sgesetze  des  erdballs)  and,  in  an  appendix,  the  law  of 
cheques  of  the  more  important  commercial  countries.  Dr. 
Hans  Lessing  2  published  a  handy  little  work  on  the  subject, 
in  which  foreign  legislation  is  also  noted.  A  critical  work  of 
some  interest  is  that  recently  published  by  Prof.  Langen  3  of 
Miinster.  In  this  book,  questions  on  the  law  of  cheques  not 
answered  by  the  act  itself,  the  new  Bills  of  Exchange  Act, 
and  many  phases  of  the  law  of  negotiable  instruments  are  the 
subject  of  critical  discussion. 
stock    Ex-      _\  number  of  important  statutes  relating  to  commercial 

change  Law 

law  have  been  enacted.  One  of  these  is  the  stock  exchange 
law  (Borsengesetz)  of  June  22,  1896,  amended  on  May  8,  1908. 
This  act  of  May  8,  1908,  is  translated  into  English  in  one  of 
the  volumes  published  by  the  National  Monetary  Commission.4 
It  is  entitled  German  imperial  banking  laws,  edited  by  Dr.  R. 
Koch.  Besides  its  translation  of  the  stock  exchange  law,  it 
contains  the  regulations  for  the  Berlin  Exchange  of  December, 
1908,  and  provisions  concerning  brokers  on  that  exchange. 
The  important  provisions  of  the  law  of  1908  are  discussed 
briefly  in  the  Journal  of  the  Society  of  Comparative  Legisla- 
tion, March,  191 1,  page  326.  A  useful  commentary  on  the 
act,  based  on  the  new  amendment,  was  published  under  the 
auspices   of   the   German    Bankers'    Association    by    Rehm,5 

1  Conrad,  Walter.     Handbuch  des  deutschen  scheckrechts.     Stuttgart, 

F.  Enke,  1908.     340  p. 

2  Lessing,  Hans.     Scheckgesetz    vom    11.     Marz    1908.     Munchen,    J. 

Schweitzer,  1908.     262  p. 

3  Langen,  Prof.  A.     Zum  scheckrecht.     Erorterungen  iiber  die  rechts- 

lage  des  scbecks  ausserhalb  des  scheckgesetzes.     Berlin,  Heymann, 
1910.     140  p. 

4  Koch,  Richard.     German  imperial  banking  laws.     Together  with  the 

German  stock  exchange  regulations.     S.  Doc.   574,  61st  Cong.  2d 
sess.     Washington,  G.  P.  O.,  1910. 

5  Kommentar  zum  borsengesetz.     Auf  veranlassung  des  zentralverbandes 

der  deutscbcn  bankiergewerbes  von  Rebm,  Trumpler,  Dove,  Neu- 
kamp  and  others.     Berlin,  Guttentag,  1909.     464  p. 


BANKING    LAW  1 15 

Triimpler,  Dove,  and  others.  It  appeared  in  1909.  A 
recent  work  by  Dr.  Otto  Bernstein,1  which  includes  the  1908 
amendment,  was  published  in  1910. 

The  banking  laws  of  Germany  are  contained  in  the  statutes  Banking 
organizing  the  Reichsbank  of  March  14  and  May  21,  1875  and 
in  the  amending  statutes  of  December  18  and  June  7,  1899  and 
June  1,  1909.  All  these  statutes  are  translated  and  critically 
discussed  in  the  work  by  Koch  (supra)  published  by  the  Na- 
tional Monetary  Commission.  One  of  the  best  editions  of  the 
Banking  Act  and  its  amendment  is  edited  by  A.  Henschel,2 
published  in  19 10. 

Another  important  law  is  that  concerning  the  safe  custody    Custody  of 

Xegotiable  In- 

of  negotiable  instruments  (Gesetz  betrefjend  die  Pflichtcn  </< r  struments 
Kaufleutc  bci  der  Aujbewahrung  fremder  Wertpapiere)  enacted 
July  5,  1896.  It  concerns  the  rights,  duties  and  liabilities  of 
the  parties  concerned  in  a  transaction  of  deposit  of  securities 
for  safe-keeping  or  by  way  of  pledge,  with  brokers,  merchants, 
etc.  A  translation  of  the  Act  is  printed  as  Appendix  A 
(pp.  229-234)  of  A.  F.  Schuster's  translation  of  the  Commercial 
Code  (suf>ra).  A  critical  discussion  of  the  statute  was  pub- 
lished in  1906  by  Prof.  Riesser,11  of  Berlin. 

The  mortgage  bank  law  (Hypnthtkcnbankgesetz)  of  July  13,    Mortgage 

Hank  Law 

1899,  is  also  important.  A  small  commentary  by  Merzbaclur  ' 
and  another  by  L<ihr  3  are  perhaps  the  best  on  the  subject. 
A  recent  volume  by  Dannenbaum  '  treats  the  subject  exhaust- 
ively, both  from  the  legal  and  the  economic  points  of  view. 

1  Bernstein,  Otto.     Das  Borsengesetz.     Leipzig,  Rossberg,  1910.     4U7  p, 

-  Henschel,  Albert.  Bankgesetz  vom  14.  marz  1875.  Berlin,  ]•". 
Vahlen,  1910.     492  p. 

3  Riesser,  Dr.  Das  Bankdepotgesetz.  Berlin,  Otto  Liebmann,  1906. 
128  p. 

*  Merzbacher,  S.  Hypothekenbankgesetz  vom  13.  7.  1899.  Munchen, 
Beck,  1899.     145  p. 

'-  Lolir,  Josef.  Das  liypothekcnbankgesetz  vom  13.  7.  1899.  Leipzig, 
1906.     155  P 

0  Dannenbaum,  Fritz.  Deutsche  hypothekenbanken.  Berlin,  P.  \  all- 
ien. 1911,     41  - 


Il6  GUIDE  TO  THE   LAW   OF   GERMANY 

BANKRUPTCY 

The  German  law  of  bankruptcy  was  first  unified  on  Feb- 
ruary 10,  1877  (effective  Oct.  1,  1879),  and  was  amended  with 
the  other  important  codes  in  1898.  An  article  in  the  Law 
Times,  volume  72  (1881-82),  pages  58-59,  434-435,  discusses 
the  procedure  and  mechanism  of  the  law,  including  the  ques- 
tion of  the  distribution  of  assets  among  creditors.  The  lead- 
ing commentary  on  the  subject  is  that  by  E.  Jager,1  the  fourth 
edition  of  which  has  just  been  completed.  Another  popular 
commentary  was  written  by  Judge  Wilmowski,2  a  sixth 
edition  of  which  appeared  in  1906.  The  questions  of  bank- 
ruptcy law  and  procedure  are  also  discussed  in  an  important 
treatise  by  Prof.  Hermann  Fitting,3  of  Halle,  the  celebrated 
discoverer  of  the  work  of  Irnerius,  founder  of  the  classic  law 
school  at  Bologna  (J.  D.  Wilson  in  Juridical  Review,  1894,  vol. 
6,  pp.  304-307).  The  third  edition  appeared  in  1904.  An 
important  work  on  bankruptcy  procedure,  one  of  the  Binding 
series,  is  the  treatise  by  Prof.  Seuffert,4  of  Munich,  based  on 
the  new  legislation  of  1898  It  is  an  historical  and  dogmatic 
presentation  of  the  subject, 
creditors'  ^jj  important  law,  closely  related  to  bankruptcy,  is  that 
concerning  creditor's  suits,  where,  among  other  contingencies, 
the  circumstances  indicate  an  assignment  or  other  disposi- 
tion of  assets  in  fraud  of  creditors  (Gldubigeranfcchtung). 
This  law  of  July  21,  1879,  as  amended  May  20,  1898,  is  ably 

1  Jager,  E.  Kommentar  zur  konkursordnung  u.  den  einfuhrungs- 
gesetzen.    3d  and  4th  ed.     Berlin,  J.  Guttentag,  1907-11.  \ 

2  Wilmowski,  Gustav  Karl  Adolf  von.  Deutsche  reichs-konkursord- 
nung.  Nach  dem  tode  des  verfassers  fortgesetzt  von  dr.  K.  Kurl- 
baum  ...  A.  Kurlbaum  .  .  .  und  W.  Kuhne  ...  6th  ed. 
Berlin,  F.  Vahlen,  1906.     788  p. 

3  Fitting,  Hermann  Heinrich.  Das  reiehs-konkursrecht  und  konkurs- 
verfahren.     3d  ed.     Berlin,  J.  Guttentag,  1904.     523  p. 

4  Seuffert,  Lothar.  Deutsches  konkursprozessrecht.  Leipzig,  Duncker 
&Humblot,  1S99.     483  p. 


Suits 


TKtSTS    WD    MONOPOUES  117 

treated  in  a  work  by  Dr.  Ernst  Jaeger,1  published  in  1905,  and 
in  the  standard  work  on  the  subject  by  Falkmaun.- 

TRUSTS   AND    MONOPOLIES 

Under  the  principle  of  industrial  liberty,  trusts  (Kartellen) 
and  combinations  of  capital  arc  regarded  as  lawful.  The  only 
limitation  seems  to  be  that  they  must  not  be  against  morality 
{gute  Sitten)  according  to  section  138  of  the  German  Civil 
Code,  nor  unlawfully  injure  another,  according  to  section  826 
of  that  code.  Both  sections  have  received  the  most  liberal 
of  constructions.  Nor  theoretically  must  they  establish  a 
monopoly,  nor  exploit  the  public,  although  in  practice  these 
principles  seem  to  have  been  generally  disregarded.  Occa- 
sionally a  trust  has  been  declared  unlawful  by  reason  of  hav- 
ing been  found  guilty  of  extortion  under  the  Penal  Code. 

In  an  article  by  Francis  Walker  in  the  Political  Science 
Quarterly,  volume  20  (1905),  pages  13-41,  on  the  "Law  con- 
cerning monopolistic  combinations  in  Europe",  several  pages 
(14-21)  are  devoted  to  the  law  of  Germany.  A  recent 
Government  publication,  Trusts  in  foreign  countries,  printed 
for  the  use  of  the  Senate  Committee  on  Interstate  Commerce 
(191 1),  contains  the  article  by  Walker  above  mentioned,  and 
other  articles  on  the  legal  status  and  operation  of  trusts  in 
Germany.  The  subject  of  trusts  in  Germany  is  the  basis  of 
an  interesting  note  in  volume  36  (May  7,  1908)  of  the  Na- 
tional Corporation  Reporter,  page  445.  A  popular  article  bv 
('..  Hi  Montague,  "German  and  British  experience  with  trusts", 
in  volume  107  Atlantic  Monthly,  pages  155-164  (February, 
191 1)  is  of  interest.  The  subject  was  discussed  at  length  in 
the   twenty-sixth   convention  of  German  jurists   (Deutscker 

1  Jaeger,   Ernst.      Die    glaubigeranfechtung  ausserhalb   des  konkurses. 

Berlin,  J.  Guttcntag,  1905.    344  p. 
-  Falkmann,    R.      Die    anfechtung    van    rulitshaiulluTigeii     dutch    die 

glaubiger  ausserhalb  des  konkurses.     Berlin,  1908.     117  p. 


Il8  GUIDE   TO   THE   LAW   OF  GERMANY 

Juristcntaq)  1902  and  again  at  their  meeting  in  1904.  A 
critical  discussion  of  the  law  of  trusts  and  monopolies  is 
contained  in  a  work  by  Dr.  Simon  Rundstein '  published  in 
1904.  A  small  book,  written  from  a  legal  standpoint,  is 
that  of  Dr.  Rudolf  Huttner2,  published  in  1909.  Josef 
Grunzel 3  (Leipzig,  1902)  and  Baumgarten  and  Meszleny 4 
(Berlin,  1906)  are  the  authors  of  two  works  dealing  with  the 
legal  and  economic  aspects  of  the  subject.  The  latter  is  a 
comparative  study.  Ludwig  Silberberg,  the  editor  of  the 
periodical  Deutsche*  Kartell-jahrbuch,s  has  recently  published 
a  small  volume  on  the  German  law  of  trusts.6  It  has  been 
favorably  reviewed.  In  1906,  the  German  Government  (De- 
partment of  Interior)  prepared  a  voluminous  memorial  con- 
cerning trusts  in  Germany,  entitled  Denkschrijt  iiber  das 
kartellwesen  (Berlin,  Heymann). 

INSURANCE 

The  German  law  of  insurance  is  dealt  with  in  a  number  of 
statutes.  The  act  of  May  12,  1901  governing  private  insur- 
ance (Privat-versicheriingsunternehmen)  regulates  the  precau- 
tions required  to  be  taken  for  the  safety  of  the  policy  holders 
on  the  establishment  of  insurance  companies,  and  provides 
for  the  appointment  of  a  Government  board  by  which  they 
are  controlled.     The  laws  as  to  social  insurance  (against  acci- 

1  Rundstein,  Simon.     Das  recht   der   kartelle.     Berlin,  R.  V.  Decker, 

1904.     118  p. 

2  Hiittner,  Rudolf.     Das  recht  der  kartelle  in  Deutschland.     Leipzig, 

Rossberg,  1909.     147  p. 

3  Grunzel,  Josef,     tjber  kartelle.     Leipzig,  Duncker  &  Humblot,  1902. 

332  P- 

4  Baumgarten und  Meszleny.     Kartelle  u.  trusts.     Berlin,  O.  Liebmann, 

1906. 
6  Deutsches  Kartell-jahrbuch,  hrsg.   v.   Ludwig  Silberberg.      Begun  in 

1910.     One  volume  annually.    Berlin,  Puttkammer  &  Miihlbrecht, 

1910  and  cont. 
6  Silberberg,  Ludwig.     Handbuch  des  deutschen  kartellrechts.     Berlin, 

Puttkammer  &  Miihlbrecht,  1911.    327  p. 


INSURANCE  119 

dent,  sickness,  invalidity,  old  age,  etc.)  are  contained  in  the  re- 
cent Workmen's  Insurance  Code  (Rt  ichsversicherungsordnung)ol 

191 1 .  The  subject  of  marine  insurance  is  governed  by  sections 
778-900  of  the  Commercial  Code  (supra).  The  Civil  Code  deals 
with  life  insurance  for  the  benefit  of  a  third  party  (sec.  330) 
and  contains  certain  rules  as  to  contracts  providing  for 
annuities  (sees.  759-761).  In  addition  to  these  statutes 
there  existed  prior  to  the  coming  into  force  of  the  act  of  May 
30,  1908  (in  force  Jan.  1,  1910)  relating  to  insurance  contracts 
(Geseii  betreffend  den  Versicherungsvertrag),  a  complex  and 
divergent  Slate  law  on  (lie  same  subject  which  was  expressly 
upheld  by  article  75  of  the  statute  introducing  the  Civil  Code. 

This  act  of  May  30,  1908  does  not  interfere  with  previously 
existing  Imperial  law,  but  with  a  few  exceptions,  specified 
in  sections  191-193,  it  revokes  the  existing  State  law.  Tin 
act  is  divided  into  four  parts  of  which  part  one  has  four 
subdivisions.  The  first  contains  the  general  rules  dealing 
with  the  form  of  insurance  contracts,  and  the  effect  of  pro- 
visions as  to  forfeiture,  prescription,  and  other  matters;  the 
second  subdivision  deals  with  the  duty  of  the  insurer  to  make 
full  disclosure  and  the  right  of  the  insurer  to  give  notice  to 
determine  the  contract  in  the  event  of  an  unexpected  increase 
of  the  risk;  the  third  subdivision  regulates  the  payment  of 
premiums;  and  the  fourth,  the  rights  and  powers  of  insurance 
agents. 

Part  2  of  the  act  deals  with  insurance  against  damage 
(fire  insurance,  insurance  against  hail,  insurance  of  cattle,  of 
property  carried  by  land,  and  liability  insurance).  The  third 
and  fourth  parts  respectively  contain  the  special  rules  relat- 
ing to  life  insurance  and  insurance  against  accidents. 

A  brief  account  of  the  provisions  of  the  act  of  1908  is  to 
be  found  in  the  Journal  of  the  Society  of  Comparative  Legis- 
lation, March,  191 1,  pages  324-325.  The  provisions  of  both 
tlu-  acts  of  1901  and  1908  are  discussed  in  French  by  Ernest 


120        GUIDE  TO  THE  LAW  OF  GERMANY 

Lehr  in  the  Revue  de  droit  international,  volume  42  (1910), 
pages  263-303. 

The  act  of  May  12,  1901  is  treated  in  a  good  commentary 
by  Dr.  H.  Rehm,1  a  third  edition  of  which  has  just  been 
issued  (191 1).  Dr.  Manes2  of  Berlin,  one  of  the  leading 
authorities  on  insurance  law,  has  likewise  written  a  com- 
mentary on  the  act  of  1901,  which  was  published  in  a  second 
edition  in  1909  by  Otto  Hagen. 

The  act  of  1908  has  called  forth  a  considerable  literature 
of  which  only  the  most  important  contributions  can  be  noticed 
here.  A  small  but  good  annotated  edition  of  the  act  was  pub- 
lished in  1908  by  Dr.  Konrad  Schneider,'1  a  judge  of  the  court 
of  appeal.  The  leading  commentary  on  the  act  of  1908  was 
published  under  the  general  editorship  of  Dr.  Manes,4  of  Ber- 
lin, with  the  cooperation  of  a  number  of  other  authorities  on 
insurance  law.  The  work  appeared  in  1 908.  Dr.  Kurt  Heyne  '' 
is  the  author  of  a  small  work  dealing  with  fire  insurance 
based  on  the  regulations  of  the  act  of  1908. 

The  leading  treatise  on  the  general  law  of  insurance  is 
that  by  Prof.  Ehrenberg  fi  of  Gottingen,  only  one  volume  of 
which  has  been  published.  It  was  issued  in  the  Binding 
series.     As  a  statement  of  existing  law  it  has  become  some- 

1  Rehm,   H.     Reichsgesetz   iiber  die   privaten   versicherungsunterneh- 

mungen  vom  12.  V.  1901.     3d  ed.     Miinchen,  Beck,  1911.     429  p. 

2  Manes,  A.     Das  reichsgesetz   iiber   die   privaten   versicherungsunter- 

nehmungen  vom  12.  V.  1901  mit  erlauterungen.  2d  ed.,  by  O.  Hagen. 
Tubingen,  J.  C.  B.  Mohr,  1909.     398  p. 

3  Schneider,    Konrad.      Reichsgesetz    iiber    den    versichenmgsvertrag. 

Miinchen,  Beck,  1908.     555  p. 

4  Manes,   Alfred.      Kommentar   zum   deutschen   reichsgesetz   iiber  den 

versicherungs-vertrag;  von  Stephan  Gerhard  .  .  .  Otto  Hagen  .  .  . 
Hugo  v.  Knebel-Doeberitz  .  .  .  Hermann  Broecker  .  .  .  Alfred 
Manes  .  .  .  Berlin,  E.  S.  Mittler  und  Sohn,  1908.     818  p. 

5  Heyne,  Dr.  Kurt.      Versicherung  gegen  branschaden  und  die  brand- 

schaden-regulierung.     Leipzig,  Duncker  &  Humblot,  igio.     193  p. 

6  Ehrenberg,  Victor.      Versicherungsrecht.     Leipzig,  Duncker  &  Hum- 

blot,  1893.     1  v. 


SOCIAL  INSURANCE  121 

what  antiquated  by  reason  of  recent  legislation,  but  it  is 
excellent  for  its  theoretical  discussions  of  general  doctrines 
in  special  kinds  of  insurance.  A  large  work  of  reference,  in 
the  form  of  a  dictionary,  which  covers  both  commercial 
(private)  insurance  and  social  (workmen's  and  employees') 
insurance,  was  edited  by  Dr.  Manes  ■  and  published  in  1909. 
It  includes  Austrian  and  Swiss,  as  well  as  German  law, 

Besides  the  general  collections  of  court  decisions,  two  series 
of  reports  are  devoted  to  the  special  subject  of  insurance. 
One  of  these  series  is  edited  by  Stephan  Gerhard,2  and  entitled 
Praxis  des  privatirrsichcnoigsrechts.  It  is  published  in  three 
volumes  (1908-191 1).  The  other  series  is  edited  by  F.  Hacke  3 
and  covers  the  decisions  of  the  highest  courts  on  all  branches 
of  insurance  law  excepting  marine  insurance.  This  collection 
is  published  in  two  volumes  (1910),  the  first  of  which  covers 
private  insurance,  and  the  second,  social  insurance. 

SOCIAL  INSURANCE 

The  philosophical  principles  underlying  social  legislation  in 
Germany  in  its  modern  development  may  be  said  to  have  been 
first  expressed  in  the  works  of  Fichte  in  the  early  years  of  the 
nineteenth  century.  The  first  definite  proposal  for  the  adop- 
tion of  compulsory  insurance  as  a  state  institution  originated 
with  Dr.  Albert  Schaeffle,  the  leader  of  the  social  democrats. 
Two  of  his  most  prominent  works,  his  Impossibility  of  sot  ial 

'  Manes,  Alfred.  Versicherungslexikon;  em  nachschlagewerk  fur  alle 
wissensgebietc  dcr  privat-  und  der  sozial-versicherung  insbesondere 
in  Deutschland,  Ocstcrreidi  und  dcr  Schwciz.  Tubingen,  J.  C.  B. 
Mohr  (P.  Siebeck)  1909.     1682  col. 

2  Gerhard,   S.      Praxis    des    privat versicherungsrechts.      Berlin,    E.    S. 

Mittler  &  Sohn,  1908-1911.     3  v. 

3  Hacke,   F.     Die    rechtspreclmng  des  reichsgerichts,    des  reichsober- 

handelsgerichts   .    .    .   auf    dem     gebiete    des    versichungsrechts. 
Berlin,  W.  Moeser,  1910.     2  v. 


122        GUIDE  TO  THE  LAW  OF  GERMANY 

democracy  *  and  Theory  and  policy  of  labor  protection  2  have 
been  translated  into  English.  For  more  than  a  generation, 
insurance  had  constituted  one  of  the  definite  attributes  of  the 
trade  guilds  (Innungen  and  Erwerbs-  und  Wirtschaftsgenossen- 
schaften).  The  growing  restiveness  and  political  influence  of 
the  social  democrats  finally  induced  Bismarck  to  initiate  gov- 
ernmental action  in  support  of  compulsory  insurance.  Ger- 
many was  the  first  country  to  adopt  a  system  of  compulsory 
insurance  of  workmen  on  a  national  scale  as  a  part  of  the  policy 
of  a  great  industrial  nation. 
LiawmyyerS  As  early  as  1838,  shortly  after  the  construction  of  its  first 
railroad,  Prussia  placed  on  all  railroads  the  duty  to  make 
compensation  for  all  injuries  which  the  railroad  could  not 
show  were  due  to  unavoidable  accident,  or  the  fault  of  the 
victim.  The  present  system  of  compulsory  insurance  against 
accident,  sickness,  and  invalidity  was  preceded  by  an  Em- 
ployers Liability  Act  (Reichshaftpflichtgesetz)  of  June  7,  1871, 
which  secured  to  the  employee  in  certain  branches  of  gainful 
occupations,  especially  in  railways,  mines  and  factories,  a 
definite  legal  right  to  indemnification  under  the  following  cir- 
cumstances: first,  in  railway  accidents  when  the  employer  can 
not  show  that  the  injured  employee  suffered  by  his  own  fault, 
or  by  circumstances  beyond  the  employer's  control;  second,  in 
other  cases,  mines,  quarries  and  factories,  when  the  injured 
employee  on  his  part  can  show  that  either  the  employer  or  his 
agents  were  in  fault.  It  is  a  short  act  of  ten  articles.  A 
translation  of  this  act  is  printed  in  Appendix  A,  page  814,  of 
the  Seventeenth  Annual  Report  of  the  New  York  Bureau  of 

'Schaffle,  Albert.  The  impossibility  of  social  democracy.  Translated 
from  the  fourth  German  edition  by  A.  C.  Morant.  London,  Swan, 
Sonnenschein,  1892.     419  p.     New  edition,  London,  G.  Allen,  1911. 

336  P- 
2  Schaffle,  Albert.     The  theory  and  policy  of  labour  protection.     Edited 
and  translated   by  A.    C.    Morant.     London,  Swan,  Sonnenschein, 
1893.     252  p. 


SOCIAL   INSURANCE  I  23 

Labor  Statistics  and  in  volume  2  of  the  Twenty-Fourth  Annual 
Report  of  the  United  States  Commissioner  of  Labor,  pages 

2551-2552. 

This  Employers  Liability  Act  of  1871  did  not  bring  about 
the  desired  result.  The  heavy  burden  of  proof  cast  upon 
the  injured  employee  and  the  necessity  of  proving  negli- 
gence almost  frustrated  the  beneficent  intentions  of  the 
measure.  By  reason  of  the  Compulsory  Insurance  Acts 
against  accident  and  sickness  of  1883  and  1884,  with  their 
amendments,  this  Employers  Liability  Act  of  1871  has 
lost  much  of  its  importance.  It  still  applies,  however, 
(a)  to  persons  injured  in  factories  who  are  independent  of 
the  employer,  and  to  railway  passengers;  (b)  to  managers, 
heads  of  departments,  and  other  employees  who  are  not 
included  within  the  provisions  of  the  compulsory  insurance 
laws,  in  other  words,  those  who  receive  a  salary  of  more 
than  3,000  marks  (formerly  2,000);  (c)  to  enterprises  not 
embraced  within  the  Accident  Insurance  Acts,  according  to 
the  decisions  of  the  Bundesrat,  and  in  a  few  other  cases.  The 
leading  work  on  the  subject  of  employers  liability  under  the 
act  of  1 871  is  that  of  Dr.  Georg  Eger,1  the  seventh  edition  of 
which  has  just  been  published  (1912).  The  Act  and  its  oper- 
ation is  also  discussed  in  many  of  the  works  in  English  on 
compulsory  workmen's  insurance   (infra). 

Germany  has  recently  codified  its  laws  on  all  the  various    Workmen's 

.  .  Insurance 

branches  of  workmen  s  insurance.     The  code  (Retchtversuln-  code 
rungsordnung),  promulgated  July  19,  191 1,  is  fully  up  to  the 
standard  of  the  splendid  codifications  of  other  branches  of 
German  law.     The  new  Workmen's  Insurance  Code  contains 

1  Egcr,  Georg.  Das  reichs-haftpflicht-gesetz  betreffend  die  verbindlicli- 
keit  zum  schadenersatz  fur  die  bei  dem  betriebc  von  eisenbahiKii, 
bergwerken,  steinbruchen,  grabereien  und  fabriken  herbeigefuhrten 
todtungen  und  kSrperverletzungen.  Vom  7  Juni  1871.  7U1  ed. 
Hannover,  Hchving,  1912.     669  p. 


124        GUIDE  TO  THE  LAW  OF  GERMANY 

1805  sections  and  an  extensive  introductory  law;  with  the 
exception  of  the  Civil  Code,  it  is  now  the  largest  code  in 
the  German  Empire.  This  code  takes  the  place  of  the  fol- 
lowing statutes:  The  Sickness  Insurance  Act  of  June  15, 
1883,  as  amended  April  10,  1892,  with  the  amendments  of 
June  30,  1900,  and  May  25,  1903;  the  act  of  May  5,  1S86, 
concerning  accident  and  sickness  insurance  of  persons  engaged 
in  agricultural  and  forestry  industries ;  the  Industrial  Accident 
Insurance  Law  of  June  30,  1900,  amending  and  codifying  the 
accident  insurance  laws  in  various  branches  of  industry;  the 
Mercantile  Accident  Insurance  Act,  as  promulgated  July  5, 
1900,  and  the  Invalidity  Insurance  Act  of  July  13,  1899,  as 
promulgated  July  19,  1899.  The  code  has  extended  the 
application  of  different  forms  of  workmen's  insurance  to  new 
industries  and  to  new  beneficiaries. 

The  new  Insurance  Code,  which  awaits  certain  administra- 
tive regulations  before  coming  into  force,  embraces  six  books, 
which  deal  respectively  with  the  following  matters:  First, 
general  provisions,  particularly  the  organization  of  the  in- 
surers and  the  Imperial  Insurance  Office  (Reichsversiche- 
rungsamt).  The  second  book  deals  with  sickness  insurance. 
Sickness  insurance  instead  of  being  confined  to  certain  indus- 
tries is  now  extended  to  all  employments.  The  third  book 
covers  accident  insurance  in  its  three  branches,  industrial 
agricultural  and  mercantile.  The  number  of  industries  and 
occupations  to  which  accident  insurance  is  applicable  has 
also  been  greatly  extended.  The  organization  of  the  admin- 
istration of  accident  insurance  has  been  changed  but  slightly. 
The  fourth  book,  dealing  with  invalidity,  includes  the  new 
widows'  and  orphans'  insurance  laws.  Book  5  contains  only 
44  sections.  It  regulates  the  legal  relations  of  sickness  insur- 
ance to  invalidity  insurance  and  to  widows  and  orphans 
insurance,  and  of  accident  to  invalidity  and  widows  and 
orphans  insurance.     It  may  well  happen  that  in  a  given  case 


SOCIAL   INSURAXCE  1 25 

two  or  three  of  these  forms  of  insurance  may  be  applicable; 
hence  the  necessity  of  regulating  their  concurrent  application. 
Book  6  regulates  the  common  procedure  for  all  branches  of 
social  insurance.  There  is  now  a  common  forum,  many  of 
the  former  arbitration  courts  with  their  peculiar  appellate 
jurisdictions  being  abolished.  The  new  jurisdictional  courts 
in  these  insurance  cases  are:  First,  the  Versicherungsamt; 
second,  the  Obcrvcrskhcruiigsamt;  and  third,  for  important 
cases,  the  Reichsversicherungsamt  (Landesversicherungsami) , 
as  a  court  of  last  resort.  In  assessing  damages,  there  is 
now  a  larger  representation  of  employees  in  the  court  than 
heretofore. 

One  of  the  principal  objects  of  the  Imperial  Insurance  Office 
is  to  secure  uniform  construction  and  interpretation  of  the 
law  as  between  the  adjudications  of  the  various  inferior 
courts,  and  uniformity  in  the  administration  of  the  law.  For 
that  reason  it  has  been  relieved  of  jurisdiction  in  minor  cases. 

A  good  description  of  the  contents  of  the  new  code,  with 
special  emphasis  on  the  changes  brought  about  in  the  old 
law,  is  contained  in  an  article  by  Prof.  Lass,  of  Berlin,  which 
appeared  in  the  Deutsche  juristen-zeilung  for  September  1, 
1911,  columns  1031-1041.  A  valuable  account  of  the  scope 
and  contents  of  the  new  code  is  printed  as  an  Introduction 
(pp.  501-506)  to  a  recent  English  translation  of  the  new 
Workmen's  Insurance  Code  which  has  been  made  by  Dr. 
Henry  J.  Harris,  now  Chief  of  the  Documents  Division  of 
the  Library  of  Congress.  This  translation  is  published  in 
Bulletin    96   of    the    United  States    Bureau  of  Labor,  pages 

507-774- 

The  new  code  of  191 1  has  restated  and  codified  the  former 
laws  on  the  individual  branches  of  the  subject,  but  the  sub- 
stantive provisions  of  the  law  have  been  but  slightly  altered. 
The  new  code  has  already  brought  out  a  large  number  of  anno- 


126  GUIDE  TO   THE   LAW  OF  GERMANY 

tated  editions  and  commentaries,  but  for  some  years  to  come, 
the  important  literature  on  the  law  in  force  before  codification 
will  still  be  considered  authoritative,  and  in  this  Guide,  can 
not  be  overlooked.  An  important  document  showing  the 
origin  and  history  of  each  section  of  the  new  code  is  known 
under  the  following  title:  V  erhandlungen  des  reichstags,  XII 
Legislator periode ,  77  Session,  Anlagen  zu  den  stenographischen 
berichten,  Sec.  340,  Provisorischer  teil.  Besides  the  code  itself, 
this  document  contains  an  exhaustive  description  of  its  con- 
tents, its  bases  and  "motives,"  and  its  relation  to  previously 
existing  law,  with  explanatory  notes  throughout.  Reciprocal 
tables  show  the  location  of  provisions  of  the  former  laws  in 
the  new  code  and  indicate  the  specific  origin  of  each  of  its 
sections. 

A  convenient  edition  of  the  new  code  in  four  small  volumes, 
edited  by  Manes,1  Mentzel,  and  Schulz,  is  being  published  at 
Leipzig  by  Goschen  Verlagsbuchhandlung.  Practical  editions 
of  the  code  in  one  or  two  volumes  are  being  prepared.  From 
the  advance-notices,  the  most  desirable  of  these  seem  to  be 
the  commentary  by  Stier-Somlo2  and  the  two  volume  com- 
mentary by  Gugel  and  Schmid.3  Extensive  commentaries,  in 
four  or  more  volumes,  are  being  prepared  by  Diittmann 4  and 
by  Hanow5,  each  with  the  cooperation  of  several  other  editors. 
The  editors  of  Hanow's  commentary  are  all  officials  of  the 
Imperial  Insurance  Office.  Parts  of  the  last  mentioned  works 
have  already  been  published. 

1  Manes,  Mentzel  and  Schulz.     Reiehsversieherungsordnung.     Leipzig, 

Goschen,  1911.     4  v. 

2  Stier-Somlo,  F.  Kommentar  znr  reiehsversieherungsordnung  und  ihrem 

einfuhrungsgesetz,  v.  19.     7.     1911.     Berlin,  F.  Vahlen,  1911-12. 

3  Gugel    and    Schmid.     Kommentar    zur    reiehsversieherungsordnung. 

Berlin,  E.  Weber,  1911-12.     About  1600  p.     2  v. 

4  Diittman,    F.  Appelius,  P.  Brunn   u.  a.    Kommentar   zur  reiehsver- 

sieherungsordnung.    Altenburg,  Geibel,  191 1.     4  V. 
6  Hanow,   H.,    F.  Hoffmann,   R.   Lehmann,   St.   Moesle,  W.  Rabeling. 
Kommentar    zur    reiehsversieherungsordnung.      Berlin,    Heyman, 
1911.     5  v. 


SOCIAL   INSURANCE  1 27 

A  new  periodical,  devoted  entirely  to  social  insurance,  has 
been  announced.  It  is  edited  by  Duttmann,  Appelius,  and 
Brunn.1 

The  German  system  of  social  insurance  has  been  given  a 
wide  extension  by  the  law  of  December  20,  191 1.  That  law 
Das  Versicherungsgesetz  jur  Angeslellte  provides  for  insur- 
ance against  invalidity  and  old  age  for  salaried  employees, 
including  superintendents,  foremen,  musicians,  actors,  tutors, 
ship's  officers,  and  others  whose  salary  does  not  exceed 
five  thousand  marks  per  year.  Employees  between  the 
ages  of  sixteen  and  sixty  are  eligible  for  admission  to  the 
benefits  of  this  insurance,  whose  benefits  extend  likewise  to 
widows  and  orphans.  Compulsory  sickness  insurance  was 
first  provided  for  this  class  of  persons  in  the  new  Workmen's 
Insurance  Code  of  July,  191 1.  An  English  translation  of 
the  law  of  December  20,  1911,  will  be  prepared  during  1912 
by  Dr.  H.  J.  Harris.  It  will  be  published  in  one  of  the 
bulletins  of  the  Bureau  of  Labor. 

This  law  for  the  insurance  of  salaried  employees  will  not 
go  into  effect  until  certain  regulations  for  its  operation  are 
drawn  up.  It  will  hardly  come  into  force  before  1913. 
The  law  has  brought  in  its  train  the  usual  number  of  com- 
mentaries, the  largest  of  which,  to  date,  i^  edited  by  the  well- 
known  authority  Dr.  Manes,  collaborating  with  Dr.  Paul 
Konigsberger.2  Two  other  small  commentaries  recently 
announced  are  those  by  Habermann  3  and  Brunn.' 

The  system  of  workmen's  insurance  in  Germany  has  given 
rise  to  a  great  deal  of  important  literature  in  the   English 


1  Archiv  fiir  rcichsversicherung.  Sammlung  der  ausfuhrungsbestim 
mungen  u.  bemerkenswerten  entschcidungen  zur  reichsversiche- 
rungsordnung,  etc.  Schriftleiter,  A.  Dflttmann.  Oldenburg, 
Littmann,  191a. 

-  Manes  u.  Konigsberger.  Das  versicherungsgesetz  mr  angestellte. 
Leipzig,  Goschen,  1912. 

'Habermann,  M.  Versicherungsgesetz  fiir  angestellte.  Leipzig,  I'm. - 
sclicl,  1911.     167  p. 

'  Brunn.  Kommentar  zum  versicherungsgesetz  fur  angestellte.  Berlin, 
Heymann,  1912. 


128  GUIDE   TO   THE   LAW   OF  GERMANY 

language.  Probably  the  most  complete  of  the  English 
works  on  the  subject  is  chapter  5  of  the  Twenty-fourth  Annual 
Report  (1909)  of  the  United  States  Commissioner  of  Labor 
(Washington,  Government  Printing  Office,  191 1,  pp.  977- 
1493).  This  chapter  presents  the  economic  and  legislative 
history  of  the  three  principal  laws  embracing  workmen's 
insurance  (sickness,  accident,  invalidity),  with  their  amend- 
ments, an  analysis  of  the  acts  themselves,  an  administrative 
and  statistical  account  of  the  insurance  system,  and  a  brief 
bibliography.  John  Graham  Brooks  in  the  Fourth  Special 
Report  of  the  Commissioner  of  Labor  (Washington,  1893), 
prepared  an  account  of  the  origin  of  compulsory  insurance 
in  Germany;  although  now  almost  twenty  years  old  it  is 
still  of  importance.  A  recent  work  by  Frankel  and  Daw- 
son '  published  under  the  auspices  of  the  Russell  Sage 
Foundation,  constitutes  one  of  the  best  contributions  to 
the  subject  of  " workingmen's  insurance  in  Europe."  A 
large  part  of  the  book  is  devoted  to  the  system  prevailing 
in  Germany.  A  well-selected  bibliography,  divided  by 
countries,  adds  to  the  value  of  the  work.  The  bibliography 
on  employers'  liability  and  workmen's  compensation  recently 
published  by  the  Library  of  Congress  (Government  Printing 
Office,  191 1)  is  important  for  the  more  recent  literature  on 
the  subject.  The  early  history  and  literature  of  workmen's 
insurance  previous  to  1882  is  discussed  in  an  article  by  A.  von 
Miaskowski  Zur  geschichte  und  literatur  dcs  arbeiterversiche- 
rungswesen  in  Deutschland  (Jahrbucher  jiir  national  okonomie 
und  statisiik,  N.  F.,  vol.  4,  1882,  pp.  474-496). 

Germany's  exhibit  at  the  St.  Louis  Exposition  in  1904 
was  accompanied  by  two  monographs  of  considerable 
value.  The  first,  entitled  German  workmen's  insurance  as  a 
social  institution,  in  five  parts,  was  prepared  by  order  of  the 

1  Frankel   and   Dawson.      Workingmen's  insurance   in  Europe.     New 
York,  Charities  Pub.  Committee,  1910.     477  p. 


SOCIAL   INSURANCE  1 29 

Imperial  Insurance  Office  at  Berlin.  It  discusses  the  sub- 
ject in  all  its  phases,  especially  emphasizing  the  legal,  eco- 
nomic, and  administrative.  The  second,  entitled  Guide  to 
the  workmen's  insurance  of  the  German  Empire,  was  prepared 
by  Dr.  Georg  Zacher,  the  eminent  authority  on  workmen's 
insurance  (Berlin  and  London,  Asher,  1904,  32  p.).  This 
little  monograph,  under  its  German  title  Leitfadt  11  zur 
arbeiierversichentng  des  Deutschen  Reichs,  has  appeared  in 
many  editions,  the  last  of  which  is  the  thirteenth  (Berlin, 
Behrend  &  Co.,  1908).  A  handbook  (Jahrbuch  der  arbeiter- 
rung,  1 908-1 911)  is  published  annually  in  two  small 
volumes;  it  is  useful  as  an  aid  in  the  administration  of  the 
workmen's  insurance  laws.  It  contains  all  the  statutes,  is 
fully  annotated  by  decisions,  and  is  amply  provided  with 
statistical  tables. 

Of  the  articles  in  English  on  the  subject  of  workmen's 
insurance  probably  none  exceed  in  importance  the  series  of 
four  articles  published  by  Norbert  Pinkus  in  the  Yale  Review 
during  1904-5  (v.  12,  pp.  372-388;  v.  13,  pp.  72-97;  296-323; 
418-434).  The  author  undertakes  a  critical  study  of  the  influ- 
ence of  workmen's  insurance  upon  the  whole  social  structure, 
the  scope  of  the  system,  and  its  results.  The  first  two 
articles  deal  with  the  economic  and  what  the  author  calls 
the  social  hygienic  aspects  of  workmen's  insurance  legisla- 
tion in  Germany.  The  moral  influence  was  but  barely 
indicated,  and  the  omission  induced  Professor  Farnam  of 
Yale  to  write  a  somewhat  controversial  article  "The  psy 
chology  of  German  workmen's  insurance"  (Yale  Review, 
May,  1904,  v.  13,  pp.  98-113),  which  took  up  some  of  the 
objections  to  the  compulsory  insurance  system.  To  sup- 
plement the  remarks  of  Professor  Farnam  and  discuss  the 
objections  raised  by  him  was  the  object  of  Pinkus' s  third 
and  fourth  articles.  In  these  articles  he  discusses  particu- 
29774°— 12 9 


130       GUIDE  TO  THE  LAW  OP  GERMANY 

larly  the  reciprocal  relations  of  government,  workmen,  and 
employers,  the  moral  influence  of  the  system,  and  accident 
statistics.  To  the  last  of  these  articles  Professor  Farnam 
added  a  postscript  in  refutation.  The  whole  series  consti- 
tutes an  important  contribution. 

A  criticism  of  Germany's  system  of  social  insurance  has 
recently  appeared  in  the  English  translation  of  a  tract  by 
Dr.  Ferdinand  Friedensburg,  retired  president  of  the  Senate 
in  the  Imperial  Insurance  Office.  The  article  appeared  first 
in  the  Zeitschrijt  fur  politik,  vol.  4.  His  particular  criticism 
is  that  while  intended  to  eliminate  pauperism  and  charity, 
the  system  has  produced  pauperism  in  another  form,  that  it 
has  fostered  the  German  evil  of  bureaucratic  formalism  and 
has  inspired  fraud,  a  demoralizing  practice  on  the  part  of  the 
insured.  The  translation  has  been  made  by  Dr.  L.  H.  Gray 
and  is  published  under  the  title  The  practical  results  0}  work- 
men's insurance  in  Germany  by  the  Workmen's  Compensa- 
tion Sen-ice  and  Information  Bureau,  No.  1  Broad  Street, 
New  York  City.  Experts  on  social  insurance  consider  this 
criticism  unfair,  in  that  it  gives  exaggerated  importance  to 
the  minor  and  occasional  defects  of  any  great  system  and 
fails  to  take  into  account  its  general  beneficial  results.  Dr. 
Georg  Zacher  in  an  article  in  the  American  Journal  of  Soci- 
ology (September,  191 1,  v.  17,  pp.  177-187)  upholds  the 
benefits  of  the  system  and  refutes  some  of  the  arguments 
advanced  in  Friedensburg's  monograph.  He  also  discusses 
briefly  the  extent  to  which  the  system  has  spread  to  foreign 
countries.  Alfred  Mond  in  the  English  Review  (June, 
191 1,  v.  8,  pp.  486-506)  describes  briefly  the  scope  of  the 
new  code  of  191 1,  takes  up  some  of  the  criticisms  which  have 
been  directed  against  the  system,  and  compares  some  of  the 
features  of  the  German  and  English  systems  of  social  insur- 
ance. An  article  by  Dr.  E.  J.  Schuster  "National  health 
insurance  in  England  and  Germany"  (Journal  of  the  Society 


SOCIAL   INSURANCE  131 

of  Comparative  Legislation,  pp.  11-32)  discusses  in  detail 
the  provisions  of  the  British  National  Insurance  Bill  and 
makes  brief  comparisons  with  the  system  of  social  insur- 
ance in  operation  in  Germany.  J.  A.  Emery  in  volume  4 
(191 1),  pages  17-32,  of  the  Annual  Bulletin  of  the  Compara- 
tive Law  Bureau  gives  an  account  of  the  American,  English, 
and  German  systems  of  compulsory  insurance. 

Prof.  Stier-Somlo,1  of  Bonn,  published  in  1906  an  important 
work  on  the  social  legislation  of  Germany.  The  first  volume, 
besides  the  historical  portion,  deals  with  sickness  insurance. 
A  second  volume2  which  has  recently  been  published  (1912), 
undertakes  a  scientific  and  theoretical  discussion  of  the  bases 
of  the  new  Insurance  Code. 

A  few  works  dealing  with  the  various  constituent  branches 
of  compulsory  insurance  in  Germany  must  be  mentioned.  A 
good  collection  of  all  the  laws  on  the  subject  was  published  by 
Prof.  Piloty,3  of  Wiirzburg  (3d  ed.,  1900-1908).  A  scientific 
treatise  on  the  general  subject  is  that  by  Prof.  Heinrich  Rosin,4 
of  Freiburg,  in  two  volumes  (1 893-1 905).  Prof.  Richard 
Weyl,6  of  Kiel,  is  the  author  of  an  important  treatise  on 
workmen's  insurance  (1894).  • 

The  three  important  branches  of  social  insurance,  sickness, 
accident,  and  invalidity  and  old  age,  have  been  treated  sepa- 
rately as  well  as  in  the  general  literature  mentioned  above. 
The   first   act   was   that   insuring  workmen  against   sickness 

1  Stier-Somlo.      Deutsche    sozialgesetzgebung.     Geschichtliche    grund- 

lagen  u.   krankenversicherungsrecht.     Jena,  Fischer,  1906.    408  p. 
'Stier-Somlo,  F.    Studien  zum  sozialen  recht,  insbesondere  zurreichs- 

versichennigsordnung.    Mannheim,  Bensheimer,  1912. 
•Piloty,   Robert.    Arbeiterversicherungs-Gesetze.     2/3   ed.     Munch  en, 

C.  H.   Keck,   1900-190S.     3  v. 
1  Rosin,  Heinrich.     Das  recht  der  arbeitcr-vcrsichcrung.      Berlin,  t'.ut- 

tentag,  1893-1905.      2  v. 
■  Weyl,  Richard,    I.chrbuch  des  reichsversichenmgsrechts  (Kranken-, 

unfall-,     invaliditats-     und      altersversicherungsrechts)      Leipzig, 

Duncker  &  Humblot,  1894.     1067  p. 


132        GUIDE  TO  THE  LAW  OF  GERMANY 

(Krankenversicherungsgesetz),  which  was  passed  on  June  15, 
1883.  The  preliminary  steps  are  described  in  the  Fourth 
Special  Report  of  the  United  States  Commissioner  of  Labor, 
prepared  by  John  Graham  Brooks  {supra).  A  translation  of 
this  act  of  1883,  together  with  a  translation  of  the  Accident 
Insurance  Act  of  1884,  was  published  by  Prof .  Taussig  in  the 
Quarterly  Journal  of  Economics  in  an  article  entitled  "Insur- 
ance for  workmen  in  Germany, "volume  2  (1887), pages  1 1 1-134. 
The  Sickness  Insurance  Act  was  amended  in  essential  particu- 
lars on  April  10,  1892,  June  30,  1900,  and  May  25,  1903.  A 
leading  commentary  on  the  law  of  sickness  insurance  was 
published  by  Dr.  E.  von  Woedtke,1  an  authority  on  all 
branches  of  compulsory  insurance  of  workmen.  Another  use- 
ful work  on  the  subject  is  that  of  Dr.  Theodore  H.  Petersen  2 
(6th  ed.,  1908). 

The  Accident  Insurance  Law  (Unfallversicherungsgesetz)  is 
the  most  important  of  the  legislation  dealing  with  workmen's 
insurance.  A  partial  translation  of  the  act  appears  in  Appen- 
dix B,  pages  815-820  of  the  Seventeenth  Annual  Report,  1899, 
of  the  New  York  Bureau  of  Labor  Statistics  (Albany,  Lyon, 
1900).  This  same  report,  pages  731-939,  contains  an  in- 
structive account  of  the  operation  of  the  law,  including  sta- 
tistics. The  original  act  of  1884  applied  to  workmen  in  man- 
ufacturing and  mining  industries,  etc.  By  the  act  of  May  28, 
1885,  compulsory  accident  insurance  was  extended  to  inland 
transportation  trades  and  to  important  departments  of  the 
Federal  and  State  governments,  such  as  telegraph,  army, 
and  navy.  On  May  5,  1886,  sickness  and  accident  insurance 
were  extended  to  persons  engaged  in  agriculture  and  forestry. 

1  Woedtke,    E.   von.     Krankenversicherungsgesetz   vom   15  Juni   1883. 

Kommentar.     5th  ed.     Berlin,  Guttentag,  1896.     625  p. 

2  Petersen,  Th.  H.     Das  Krankenversicherungsgesetz  vom  15.  VI  1883 — 

mit  ausfuhrungsbestimmungen.     6th  ed.     Hamburg,  Grefe  &  Tiede- 
mann,  1908.     960  p. 


SOCIAL   INSURANCE  133 

By  two  acts,  July  n,  and  July  13,  1887,  compulsory  insur- 
ance was  extended  to  persons  employed  in  the  building  trades 
and  in  navigation  enterprises.  Largely  to  secure  uniformity 
in  administration,  the  accident  insurance  laws  in  practically 
all  industries  except  agriculture  and  forestry,  were  consoli- 
dated on  June  30,  1000,  into  an  act  now  called  the  "Industrial 
Accident  Insurance  Law"  (Gewerbeunfallversicherungsgesetz). 
It  applies  to  workmen  whose  wages  do  not  exceed  3,000 
marks  per  annum.  It  is  translated  in  the  Twenty-fourth 
Annual  Report  of  the  United  States  Commissioner  of  Labor, 
volume  2,  pages  2509-2551. 

European  legislation  on  matters  of  compensation  for  indus- 
trial accidents  was  discussed  in  a  memorandum  in  the  Blue 
Book,  Cd.  2458,  which  forms  volume  3  of  the  Proceedings  of 
the  Departmental  Committee  on  Workmen's  Compensation, 
appointed  by  the  home  secretary  in  November,  1903.  The 
report  of  the  committee  was  issued  in  August,  1904  (Blue 
Book,  Cd.  2208,  Article  of  Sir  K.  E.  Digby,  Yale  Law  Journal, 
May,  1908,  pp.  485-98).  The  bulletins  of  the  United  States 
Bureau  of  Labor  from  time  to  time  contain  summaries  of  for- 
eign labor  laws,  including  laws  of  social  insurance.  Bulletin 
74  (1908)  reports  foreign  workmen's  compensation  acts. 

Probably  the  most  important  publication  on  accident  insur- 
ance is  the  three  volume  Handbiich  l  issued  by  the  Imperial 
Insurance  Office  in  Berlin  (3d  ed.,  1909-19 10).  This  work 
presents  the  legal  and  administrative  features  of  accident  in- 
surance, the  decrees  and  decisions  of  the  Insurance  Office,  and 
the  model  regulations  as  published  by  the  Bundcsrat  for  the 
operation  of  certain  industries  and  for  the  prevention  of  acci- 
dents.    Prof.  Robert  Piloty  2  published  an  important  work  in 


1  Germany,  Reichs-versicherungsamt.  Handbuch  dcr  unfallversicher- 
ung  .  .  .  die  Reichsunfallversicherungsgesetzc  dargcstcllt  \  n 
mitgliedern  des  Reichs-versicherungsamts  nach  den  akten  dieser 
behorde.     3d  ed.  Leipzig,  Breitkopf  &  Hartel,  1909-10.     3  v. 

:Piloty.  Rob.  Das  reichs-unfallversicherungsrecht.  Wiirzburg.  Hertz, 
1800-93.     3  v- 


134        GUIDE  TO  THE  LAW  OF  GERMANY 

1890  on  the  history  and  operation  of  the  accident  insurance 
laws.  Dr.  Woedtke  *  is  the  author  of  a  useful  commentary 
on  the  Industrial  Accident  Insurance  Law.  The  fifth  edition 
by  Caspar  was  published  in  1901. 

The  Invalidity  and  Old  Age  Insurance  Law  (Invalidenvcr- 
sicherungsgesetz)  was  first  passed  on  June  22,  1889,  and  was 
amended  in  important  particulars  by  the  new  act  of  July  13, 
1899.  The  law  in  Germany  is  based  on  the  contributory  plan, 
by  which  the  insured  person  and  his  employer  pay  the  princi- 
pal part  of  the  cost  of  the  pension,  although  the  State  adds  a 
liberal  subsidy  from  the  national  treasury.  A  translation  of 
the  amended  act  of  July  13,  1899,  appeared  in  the  British 
Series  of  Diplomatic  and  Consular  Reports  and  is  designated 
as  No.  518  of  the  Miscellaneous  Series  of  1899.  This  transla- 
tion, preceded  by  a  succinct  statement  of  the  main  provisions 
of  the  act,  was  reprinted  in  Bulletin  91  (November,  1910)  of 
the  United  States  Bureau  of  Labor,  pages  966-1002.  An  ac- 
count of  the  invalidity  and  old  age  pensions  in  Germany  was 
appended  to  the  report  of  the  Gainsborough  Commission  on 
"Life  and  labour  in  Germany"  (London,  1907).  An  impor- 
tant commentary  on  the  act  of  July  13,  1899  was  written  by 
Drs.  Gebhard2  and  Diittman,  second  edition,  1901,  with  sup- 
plement 1906.  Another  recent  treatment  of  the  subject  is 
undertaken  by  Dr.  K.  Trutzer.3 

On  April  2,  1909,  the  imperial  chancellor  proposed  certain 
changes  in  the  Accident,  Sickness  and  Invalidity  Insurance 
Acts.    These  proposed  reforms  are  reported  on  pages  1 052-1058 

1  Woedtke,  Erich  von.  Unfallversicherungsgesetz.  In  der  fassung  des 
gesetzes,  betreffend  die  abanderung  der  unfallversicherungsgesetze, 
vora  30.  juni  1900  als  Gevverbe-unfallversicherungsgesetze  neu  bearb. 
von  F.  Caspar  .  .  .  Berlin,  G.  Reimer,  1901.     722  p. 

3  Gebhard,  H.  u.  Diittman,  A.  Kommentar  zum  invalidenversiche- 
rungsgesetz.  2nd  ed.  Altenburg,  St.  Geibel,  1901.  879+358  p. 
Supplement  1906. 

3  Trutzer,  K.  Invalidenversicherung.  Reichsgesetz  vom  13  July  1899. 
2nd  ed.     Ansbach,  C.  Briigel  &  Sohn,  1907.     885  p. 


INDUSTRIAL  CODE  AND  LABOR  LAWS       1 35 

(accident),  1211-1216  (sickness),  and  1399-1407  (invalidity)  of 
the  Twenty-fourth  Annual  Report  (1909)  of  the  United  States 
Commissioner  of  Labor.  These  proposed  changes  have  now 
been  to  a  large  extent  incorporated  in  the  new  Insurance  Code 
(supra).  A  small  work  by  Prof.  Stier-Somlo  '  of  Bonn,  deal- 
ing with  the  latest  developments  of  the  law  for  the  protection 
of  workmen  has  recently  been  published. 

Up  to  the  present  time  there  is  no  imperial  or  State  system 
of  insurance  against  unemployment.  At  present,  relief  against 
unemployment  is  undertaken  by  three  different  classes  of 
institutions:  first,  those  subsidized  by  municipalities;  second, 
those  created  by  employers  for  their  own  establishments;  and 
third,  those  conducted  by  trades  unions  and  similar  organ- 
izations. An  excellent  discussion  of  the  subject  of  unem- 
ployment insurance  in  Germany  appears  in  the  Twenty-fourth 
Annual  Report  (1909)  of  the  Commissioner  of  Labor,  pages 
1444  et  seq.  An  important  contribution  on  unemployment 
insurance  and  other  phases  of  the  subject  of  unemployment 
was  prepared  by  W.  D.  P.  Bliss  under  the  title  What  is 
done  for  the  unemployed  in  European  countries.  Among  other 
countries,  Germany  is  given  a  prominent  place.  The  mono- 
graph appears  in  Bulletin  76,  May,  1908,  of  the  United  States 
Bureau  of  Labor,  pages  741-934.  A  bibliography  of  unem- 
ployment and  the  unemployed  was  compiled  by  F.  I.  Taylor 
(London,  King,  1909).  A  useful  discussion  of  the  questions 
relating  to  unemployment  was  published  by  Prof.  M.  Wagner, 
Beitrdge  zur  jrage  der  arbeitslosen-fiirsorge  in  Deutsckland 
(Berlin,  1904). 

INDUSTRIAL  CODE   AND   LABOR  LAWS 

In  close  relation  to  t Ik-si-  laws  for  the  protection  of  work- 
men is  the  general  Industrial  Code   (Gcurrhcordnung),  regu- 


1  Stier-Somlo,  F.     Die    neuestc  cntvvickt-lung   des  deutschen  gevvcrbe 
u.  arbeiterschutzrechts.    Niirnberg,  U.  W.  Scbald,  1910.     114  p. 


136  GUIDE   TO  THE   LAW   OF  GERMANY 

lating  the  conditions  and  activities  of  tradesmen  and  the 
working  class  as  a  whole.  This  code  contains  the  greater 
portion  of  the  labor  laws  of  the  German  Empire.  The  In- 
dustrial Code  was  first  enacted  on  June  21,  1869,  as  a  law  of 
the  North  German  Federation.  In  1871  and  1872  it  was 
introduced  into  the  various  States  of  the  Empire,  with  the 
exception  of  Alsace-Lorraine,  where  it  went  into  effect  in 
1887.  Keeping  pace  with  the  constant  growth  in  the  indus- 
trial development  of  Germany,  important  amendments  to 
the  Industrial  Code  have  been  enacted.  The  years  1890  and 
1 891  witnessed  a  great  number  of  laws  for  the  protection  of 
the  laboring  classes.  Industrial  courts  were  established  by 
the  law  of  July  29,  1890.  On  March  30,  1903,  an  impor- 
tant act  for  the  protection  of  children  and  the  regulation  of 
child  labor  was  passed,  and  another  important  act  of  January 
7,  1907,  applied  to  conditions  in  the  building  trades.  The 
original  code,  therefore,  has  been  greatly  amended.  The 
code  with  its  amendments  of  May  30,  and  July  12,  1908,  is  a 
very  comprehensive  one,  embodying  regulations  concerning 
the  operations  of  all  kinds  of  industrial  enterprises,  especially 
treating  of  the  relations  between  employer,  employed,  and 
the  public.  It  includes  within  its  provisions  all  handicrafts- 
men, skilled  laborers,  and  factory  workers;  persons  engaged  in 
commerce  and  trade  and  transportation  enterprises  of  all 
kinds;  and,  in  general,  individuals  and  institutions  serving 
the  public,  such  as  innkeepers,  barbers,  groceries,  sani- 
tariums, etc.  For  the  code  to  apply,  the  occupation,  as 
a  rule,  must  be  for  profit,  or  used  as  a  means  of  livelihood. 
The  code  excludes  from  its  provisions  industries  engaged  in 
working  the  natural  products  of  the  land  or  sea,  for  example, 
fishing,  mining,  agriculture,  forestry,  etc.;  nor  does  it  apply 
to  those  engaged  in  the  fine  arts,  such  as  photographers  and 
architects,  nor  artists  generally,  such  as  actors,  musicians, 
etc.     Educators,  physicians,  lawyers  and  public  officers  are 


INDUSTRIAL   CODE   AND   LABOR   LAWS  1 37 

excluded,  as  are  also  domestic  servants.  The  code  is  divided 
into  the  following  parts:  General  provisions;  permanently 
located  industrial  occupations,  including  their  administra- 
tion and  regulation  and  general  legal  position;  industries 
which  require  travel,  their  administration,  regulation,  etc.; 
markets  and  fairs;  taxation,  guilds  and  unions;  workmen's 
associations;  industrial  workers  of  all  kinds,  including  appren- 
tices, women  and  children  in  factories,  etc.  (though  here  the 
provisions  of  the  Commercial  Code  also  have  some  applica- 
tion); workmen's  relief  and  savings  bank  societies;  and 
lastly,  criminal  provisions. 

The  Federal  Council  {Bundesrat)  has  the  power  to  draw  up 
detailed  regulations  for  the  management  and  operation  of 
particular  industries.  These  orders  and  regulations  are  pub- 
lished in  the  Rcichsgesetzblatt.  Where  the  Bundesrat  fails  to 
exercise  its  power,  the  central  authorities  of  the  State  (Lamdes- 
Centralbehorden)  may  draw  up  the  regulations  for  their  local 
industries.  These  are  published  in  the  Official  Gazette 
(Regierungsblatt)  of  the  State. 

The  labor  laws  of  Germany  were  discussed  by  Dr.  W.  \Y. 
Willoughby  in  an  interesting  monograph  in  Bulletin  27 
(March,  1900)  of  the  United  States  Bureau  of  Labor,  pages 
314-379.  A  British  parliamentary  commission  appointed  to 
study  foreign  labor  conditions  published  the  results  of  its 
investigations  in  1893.  They  appear  in  the  Parliamentary 
Papers  under  the  head,  Royal  Commission  on  Labor,  Foreign 
Reports.  The  fifth  volume  deals  with  the  labor  conditions 
and  laws  of  Germany.  The  child  labor  legislation  of  foreign 
countries  is  discussed  in  an  important  monograph  by  Prof. 
C.  \V.  A.  Veditz,  published  in  Bulletin  89  (July,  1910)  of  the 
United  Stales  Bureau  of  Labor.  Germany  is  dealt  with  in 
pages  231  to  312.  Pages  275  to  397  of  the  Twelfth  Special 
Report  of  the  United  States  Commissioner  of  Labor  on  Coal 
Mine  Labor  in    Europe,  deals  with  mine    labor   and  mining 


138        GUIDE  TO  THE  LAW  OF  GERMANY 

laws  of  Germany.  Bulletin  20  of  the  United  States  Bureau 
of  Labor  deals  with  railway  labor  in  Europe;  one  section  of 
the  monograph  is  devoted  to  conditions  in  Germany.  An 
English  translation  of  the  more  important  foreign  labor  laws 
may  be  found  in  the  English  edition,  published  since  1906, 
of  the  Bulletin  of  the  International  Labor  Office. 

The  leading  work  on  the  Industrial  Code,  is  the  exhaus- 
tively annotated  commentary  by  Dr.  Robert  von  Landmann,1 
with  the  cooperation  of  Gustav  Rohmer.  It  is  published  in 
two  volumes,  the  sixth  edition  of  which  appeared  in  1911. 
Another  popular  work  on  the  subject  is  that  by  Judge  Ernst 
Neukamp,2  the  ninth  edition  of  which  was  published  in  1910. 

Industrial  courts  for  the  adjudication  of  questions  between 
such  kinds  of  employers  and  employees  as  are  covered  by  the 
Industrial  Code  were  established  by  the  act  of  July  29,  1890, 
amended  June  30,  1901  (promulgated  Sept.  29,  1901).  The 
operation  of  "industrial  courts  of  Europe"  is  described  by 
Miss  Sumner  in  Bulletin  98  of  the  United  States  Bureau  of 
Labor.  A  large  part  of  the  monograph  deals  with  the  juris- 
diction and  procedure  of  the  industrial  courts  of  Germany. 
A  good  commentary  on  the  act  of  1890,  covering  as  well  the 
related  statutes  concerning  fees  and  other  matters,  was  pub- 
lished in  1902  by  Dr.  M.  von  Schulz,3  president  of  the  indus- 
trial court  at  Berlin.  Aside  from  general  collections  of  deci- 
sions, the  decisions  of  these  industrial  courts  appear  in  two 
publications,  a  monthly  periodical  entitled  Das  Gewerbege- 
richt,  and  the  Mitteilungen  des  gewerbegerickts  Berlin  (Soziale 
praxis,  Centralblatt  fur  Sozialpolitik,  which  report  the  decisions 

1  Landmann  u.    Rohmer.     Kommentar  zur   gewerbeordnung     fiir     das 

Deutsche  Reich.     6th  ed.  .  .  .  Miinchen,  C.  G.  Beck,  1911.     2  v. 

2  Neukamp,  Ernst.     Gewerbeordnung  fiir  das  Deutsche  Reich,     gth  ed. 

Tubingen,  Mohr,  1910.     684  p. 

3  Schulz,  M.  von.     Gewerbegerichtsgesetzinderfassungderbekanntmach- 

ung  vom  29.     September,  1901,  erlautert.     Berlin,  O.  Haring,  1902. 
297  p. 


LABOR    LAWS  T39 

of  the  principal  court,  at  Berlin).  The  decisions  are  not 
officially  reported,  as  in  Austria. 

The  general  position  of  the  workman  in  his  relation  to  the 
Industrial  Code,  the  laws  for  compulsory  insurance  in  its 
various  branches,  and  other  relevant  matters  contained  in 
the  Civil  and  Commercial  Codes,  are  often  treated  under  the 
general  title  "Workmen's  law"  (Arbeiterrccht)  or  labor  con- 
tract i  .4  rbe  1 1  s  vertrag) . 

An  important  feature  of  German  labor  contracts  is  the 
so-called  Tarifvt  rtrag,  or  collective  agreement  between  the 
workmen  in  a  certain  trade  and  their  employer,  the  object  of 
which  is  to  regulate  the  conditions  of  the  employment,  wages 
etc.  The  legal  and  economic  operations  of  this  kind  of  joint 
agreement  are  exhaustively  treated  in  an  official  publication 
of  four  volumes  entitled  Der  tarifvertrag  im  Deuischen  Reich, 
compiled  and  edited  in  the  Kaiserlickes  Statistisches  Ami 
(Berlin,  Hermann,  1906-1908).  They  constitute  Nos.  3,  4.  5 
and  8  of  the  Beitrdge  zur  arbeiU  r-statistik.  In  a  recent  French 
article  "  I.e  contrat  collectif  de  travail  et  les  auteurs  allemand  " 
(Revue  trimestrielle  de  droit  civil,  July-September,  1 91 1 ,  vol.  1 1 , 
pp.  581-601),  Dr.  Jean  Lerov  discusses  a  recent  Belgian  work 
by  Yalere  Claes  '  on  the  subject  of  the  collective  labor  con- 
tract in  Germany.  Attention  is  called  to  the  work  because  it 
discusses  critically  and  from  a  comparative  point  of  view,  tin- 
opinions  and  doctrines  of  the  leading  German  authorities  on 
the  subject.  The  German  workman  is  employed  either  on  a 
piece  wage  (.  ikkordvertrag)  or  on  a  time  wage  (Zcitlohn).  Both 
types  of  labor  contract,  individual  and  collective,  are  treated 
in  an  important  work  by  Paul  Wolbling  2  (1908).  The  leading 
work  on  the  general  subject  of  the  labor  contract  is  the  two 

1  Valere  Clars,     Le  contrat  collectif  de  travail.     Sa  vie  juridique   en 

AJlemagne.     Bruxelles,  A.  Dewit,  igio. 
-'Wolbling.  Paul.     Der  akkordvcrtrag  u.  der  tarifvertrag.     Berlin,  Gut- 

tentag,  1908.     482  p. 


140       GUIDE  TO  THE  LAW  OF  GERMANY 

volume  edition  by  Phillip  Lotmar  *  entitled  Der  arbeitsvertrag, 
the  second  volume  of  which  was  published  in  1908.  Arthur 
Stadthagen,2  a  member  of  the  German  Reichstag,  is  the  author 
of  a  popular  work  on  labor  law.  All  aspects  of  the  rights  and 
duties  of  the  workman  in  Germany  are  dealt  with.  A  large 
volume,  edited  by  F.  Nelken,3  contains  a  critical  discussion 
and  commentary  on  the  laws  for  the  protection  of  skilled 
workmen  and  laborers  in  Germany,  particularly  as  set  forth 
in  titles  6  and  7  of  the  Industrial  Code.  A  dictionary  of  labor 
law  by  Elster,4  published  in  1910,  is  useful  for  ready  reference. 
A  supplement  covering  the  Insurance  Code  has  just  been 
published  (1912). 

CIVIL  PROCEDURE 

Cude  of  civil     Civil  procedure  in  Germany   is  governed  by  the  Code  of 

Procedure 

Civil  Procedure  (Zivilprozessordnung)  and  the  Judiciary  Act 
(Gerichtsverfassungsgesetz) ,  both  enacted  in  1877.  A  draft 
Code  of  Civil  Procedure  was  first  prepared  in  1 870  by  a  parlia- 
mentary commission.  In  1871  a  new  commission  of  ten 
jurists  was  apppointed  to  prepare  the  draft  of  a  code  for  the 
entire  Empire.  After  the  commission  had  reported  its  draft 
in  March,  1872,  it  was  submitted  to  the  Bundesrat,  and  later 
to  the  Reichstag,  and  on  January  30,  1877,  it  was  promulgated 
as  the  Code  of  Civil  Procedure  of  the  Empire.  Three  days 
previously,  a  Judiciary  Act,  revising  the  system  of  courts  in 
the   Empire,  had   also   been   enacted  into    law.    Both   these 

1  Lotmar,    Ph.      Der    arbeitsvertrag.      Leipzig,    Duncker   &    Humblot, 

1902-08.     2  v. 
Stadthagen,  Arthur.     Das  arbeiterrecht,  erlautert.     4th  ed.     Stuttgart, 

J.  G.  Dietz  nachf,  1904.     626  p. 
Nelken,  F.      Die   deutschen  handwerker-  und   arbeiterschutz-gesetze 

(titel  VI  und  VII  der  Gewerbeordnung)  nebst  den  reichsrechtlichen 

ausfuhrungsbestimmungen.    Mit  erlauterungen  hrsg.  von  F.  Nelken. 

Berlin,  J.  Springer,  1901.     1176  p. 
4  Elster,  Alexander.    Lexikon  des  arbeiterrechts.     Jena,  Gustav  Fischer, 

1910.     Suppl.  1912. 


CIVIL    PROCEDURE  141 

important  statutes  were  amended  on  May  17,  1898,  as  part 
of  the  general  legislative  reform  movement  of  that  year. 
The  draft  of  a  new  code  for  the  organization  of  the  courts  is 
now  before  the  Biendesrat,  and  the  reform  movement  (infra) 
indicates  that  within  a  few  years  a  draft  of  a  new  code  of  civil 
procedure  will  be  prepared. 

A  number  of  statutes  bear  close  relation  to  the  Code  of  Civil 
Procedure,  the  principal  one  of  which  is  the  Judiciary  Act 
just  mentioned.  Procedure  in  bankruptcy  cases  is  regulated 
by  the  Bankruptcy  Act  of  1877,  as  amended  1898.  The  act 
of  July  1,  1878,  regulating  the  practice  of  attorneys  at  law 
(Rechtsanwaltsordnung)  and  the  act  of  July  7,  1879,  regulating 
attorneys'  fees  (Gebiihrenordnnnq  fur  RechisanwaUe),  are  both 
of  importance.  The  act  of  June  18,  1878,  regulating  costs  in 
courts  of  justice  (Gerichtsgebuhrengesetz)  also  directly  concerns 
civil  procedure. 

The  Code  of  Civil  Procedure  is  divided  into  the  following 
sections:  Book  I.  general  provisions,  courts  and  their  juris- 
diction; Book  II,  procedure  in  district  and  superior  courts; 
Book  III,  appeal  and  review;  Book  IV,  re-trial  and  rehearing; 
Books  Y-VII,  procedure  in  special  matters  such  as  negotiable 
instruments,  matrimonial  causes,  and  summary  claims;  Book 
V11I,  execution  of  judgments;  Book  IX,  protection  against 
unknown  claims  caused  by  lost  instruments,  etc.;  Book  X, 
arbitration.     The  code  consists  of  872  articles. 

The  Judiciary  Act  provides  for  the  establishment,  distri-  Judiciary  Act 
bution  and  jurisdiction  of  tin-  courts.  I  >n  the  civil  side,  four 
grades  of  courts  are  provided  for;  (1 )  district  or  lower  courts 
(Amtsgerickte) ;  (2)  superior  courts  (Landesgerichte),  certain 
sections  of  the  Lamlfxgt  richtc  also  acting  as  commercial  courts 
(llii)uli  /w/i  /  u  lit,  1 ;  (3)  courts  of  appeal  (Oberlandesgerichte) 
and  (4)  tin-  imperial  supreme  court  (Reichsgerichi)  at  Leipzig. 
This  last  court  was  the  successor  of  the  Oberhandelsgericht,  a 
tribunal  which  had  been  established  in  1871,  largely  because 


142        GUIDE  TO  THE  LAW  OF  GERMANY 

of  the  apprehended  danger  that  the  Bills  of  Exchange  Act  and 
Commercial  Code  which  had  been  made  uniform,  would  be 
broken  up  into  several  systems  by  conflicting  interpretations 
in  State  courts.  The  jurisdiction  of  this  highest  tribunal  was 
also  considerably  increased.  Bavaria  occupies  an  exceptional 
position  in  its  highest  court,  in  that  it  has  established  an 
Oberstlandesgericht  having  appellate  jurisdiction  in  civil  cases 
over  the  Oberlandesgericht,  which  appellate  jurisdiction  for  the 
rest  of  the  Empire  resides  in  the  Rcichsgericht. 

An  excellent  article  on  the  German  Code  of  Civil  Procedure 
was  published  by  H.  A.  D.  Phillips  in  the  Law  Magazine  and 
Review,  fourth  series,  volume  21  (1895-6),  pages  267-285. 
He  traces  German  civil  procedure  from  its  origin  in  the  Salic 
law,  through  feudal  procedure,  to  the  present  code  (before  its 
1898  amendment).  He  describes  the  different  systems  in 
force  before  the  new  code  was  enacted  and  gives  a  summary 
of  the  principal  features  of  this  code,  for  comparative  pur- 
poses citing  the  French,  Italian,  and  Indian  codes.  In  the 
course  of  two  articles  by  Simeon  E.  Baldwin,  the  first  of  which 
was  published  in  the  Michigan  Law  Review,  volume  8  (Novem- 
ber, 1909),  pages  30-38,  a  law  suit  in  the  lowest  court  of  first 
instance  (Amtsgericht)  is  described  in  some  detail;  in  the 
second  article,  published  in  the  Yale  Law  Journal,  volume  19 
(December,  1909),  pages  69-79,  a  law  su^  is  described  in  the 
Landesgericht  or  superior  court,  where  the  parties  are  repre- 
sented by  attorneys.  The  basis  for  both  articles  is  the  little 
work  of  Dr.  Hermann  Meyer,  Anleitung  zur  prozess praxis  in 
beispielenan  rechtsfdllen  (8th  ed.,  Berlin,  Vahlen,  1910). 
judiciary  Act  Grades  and  jurisdiction  of  criminal  courts  are  likewise  pro- 
vided for  in  the  Judiciary  Act.  The  lowest  court  is  the 
Schoffengericht ,  consisting  usually  of  one  professional  and  two 
lay  judges;  next  in  order  follow  the  Landesgericht  on  its  crimi- 
nal side  (Strafkammer);  the  Sckwurgericht  or  jury  court,  a 
division  of  the  Landesgericht;  the  Oberlandesgericht  or  court  of 


JUDICIARY    ACT  I43 

appeal;  and  the  Reichsgerichi  or  Supreme  Court.  Two  able 
articles  on  the  German  judiciary  by  Prof.  J.  W.  Garner  were 
published  in  the  Political  Science  Quarterly,  volume  17  (1902), 
pages  490-514,  and  volume  18  (1903),  pages  512-530.  The 
first  of  these  articles  gives  a  general  history  of  the  Act,  its 
constitutional  position,  and  a  detailed  sketch  of  the  judicial 
hierarchy.  The  second  discusses  general  phases  of  German 
judicial  service  and  procedure,  and  judicial  power,  or  the  con- 
stitutional rights  of  the  courts.  Important  articles  by  J.  J. 
Cook,  entitled,  "Judicial  system  in  Germany"  appeared  in  the 
Juridical  Review,  volume  1  (1889),  pages  70-80,  184-192, 
298-306.  They  contain  a  descriptive  account  of  the  bench 
and  bar  in  Germany,  the  courts  and  their  competence,  and 
a  detailed  description  of  each  court  both  of  civil  and 
criminal  jurisdiction.  Judge  Karl  von  Lewinski,  who  became 
favorably  known  to  many  American  lawyers  during  the  two 
years  he  spent  in  this  country  studying  American  procedure 
in  the  interest  of  Leske-Lowenf  eld's  Rechtsverfolgung  im  inter- 
nationalen  verkehr,  published  an  interesting  article  on  "Courts 
and  procedure  in  Germany."  It  appeared  first  in  the  Illinois 
Law  Review,  volume  5  (November,  1910),  pages  193-202, 
and  was  subsequently  reprinted  in  the  American  Legal  News, 
Law  Student's  Helper  and  Canadian  Law  Times.  The  judicial 
system  of  Germany  was  discussed  in  an  article  by  Richard 
Hudson,  published  in  the  Michigan  Law  Review,  volume  1 
(1902),  pages  121-126.  The  subject  was  also  discussed  by  J. 
Kopclke  in  an  article  published  in  the  Albany  Law  Journal, 
volume  21  (1880),  pages  66-69,  167-168.  It  may  not  be 
amiss  here  to  mention  an  instructive  French  article  containing 
an  exhaustive  analysis  of  the  Judiciary  Act  by  L.  Dubarle  in 
the  Bulletin  de  la  Soci£te  de  Legislation  Comparee,  volume  5 
(1876),    pages    103-150.     M.    Dubarle1    also  translated  and 

1  Dubarle,  L.     Code  d 'organisation  judiciaire  allemand  (27  Janvier  1 
Paris,  Imprimerie  nationale,  1885.     2  v 


T44        GUIDE  TO  THE  LAW  OF  GERMANY 

edited  the  Judiciary  Act  for  the  French  Government,  which 
published  the  work  in  two  volumes.  Its  historical  introduction 
and  its  notes  command  special  notice.  In  an  article  pub- 
lished in  the  Journal  of  the  Society  of  Comparative  Legislation, 
volume  i ,  new  series  (1899),  pages  75-80,  Julius  Hirsehfield, 
under  the  title  "A  few  legal  facts  from  Germany,"  describes 
German  judicial  organization,  procedure  in  appeal  cases,  court 
costs,  fees,  and  related  questions.  In  a  short  article  by  Julius 
Hirschfeld,  entitled  "German  courts  at  work,"  printed  in  the 
July,  1 91 1  number  of  the  Journal  of  the  Society  of  Comparative 
Legislation  (pp.  1 49-56) ,  there  is  presented  a  succinct  account  of 
German  ;r  dicial  organization,  with  special  reference  to  Prussia. 
It  includes  brief  judicial  statistics  for  1909,  a  few  salient  points 
of  procedure  and  the  relation  of  the  bar  to  the  administration 
of  justice.  Occasional  comparisons  with  the  English  system 
are  made.  C.  W.  Ernst  in  an  article  entitled  "Law  reforms 
in  Germany,"  which  appeared  in  the  American  Law  Review, 
volume  18  (1884),  pages  801-813,  discusses  the  jurisdiction 
of  the  German  law  courts  under  the  Judiciary  Act  of  1877, 
emphasizing,  incidentally,  the  position  of  the  legal  profession 
in  its  relation  to  the  courts. 
Code  o(  civil     A  convenient  annotated  edition  of  the  Code  of  Civil  Pro- 

Procedure  _      . 

cedure  was  published  by  Judge  Hugo  P  reudenthal 1  of  the 
court  of  appeal.  He  takes  account  of  the  amendments  of  1 898, 
together  with  the  statutes  of  June  5,  1905  and  June  1,  1909, 
which  latter  act,  among  other  important  changes,  increased 
(he  jurisdiction  of  the  district  courts  and  amended  the  regu- 
lations as  to  attorneys'  fees.  A  book  introducing  students  to 
the  practise  of  civil  procedure  was  written  by  Prof.  Hermann 

1  Freudenthal,  Hugo.  Civilprozessordmmg  in  der  fassung  der  bekannt- 
niachung  vom  20.  mai  1S98  und  der  gesetze  vom  5.  juni  1905  und 
1  juni  1909,  nebst  dem  Einfiihrungs-gesetz.  3rd  ed.  Miinchen, 
C.  G.  Beck,  1910.     1064  p. 


CIVIL  PROCEDURE  145 

Pitting,1  of  Halle,  the  twelfth  to  thirteenth  edition  of  which 
was  published  in  1907,  with  a  supplement  treating  the  amend- 
ment of  June  1,  1909.  The  Code  of  Civil  Procedure  was  also 
translated  and  published  under  the  direction  of  the  French 
Government;  the  work  is  edited,  with  notes,  by  Glasson,2 
Uederlin,  and  Dareste, 

Several  excellent  commentaries  on  the  code  have  made  their 
appearance.  The  one  most  frequently  used  is  that  known  as 
the  Gaupp-Stein  Kommentar?  It  appeared  originally  in  1899; 
in  1910  the  first  volume  of  the  tenth  edition  was  published. 
New  editions  of  this  commentary,  as  of  the  other  standard 
works  in  Germany,  appear  every  few  years.  Another  well- 
known  commentary  is  that  by  Prof.  vSeuffert,1  of  Munich,  the 
eleventh  edition  of  which  has  recently  been  issued.  Another 
popular  commentary  in  Germany,  the  ninth  edition  of  which 
appeared  in  1910,  is  edited  by  Struekmann "'  and  Koch,  pre- 
siding judge  of  the  court  of  appeal,  and  privy  councillor, 
respectively,  assisted  by  a  number  of  other  judges.  Dr. 
Julius  Petersen"  is  the  author  of  a  commentary  (5th  ed.  by 
Remele    and    Anger,    1904-1906;  supplement,    1910),    which 

1  Fitting,  Hermann  Heinrich.     Der  reichs-civilprozess.     12  und  13  ed. 

Berlin,  J.  Guttentag,   1907.     798  p.     Die   neuerungen   der  novelle 

zur  civilprozessordnung  vom  1.  juni  1900,  als  nachtrag.     Berlin,  J. 

Guttentag,  1900.     53  p. 
'Germany.    Code  de  procedure  civile  pour  ['empire  d'Allemange  (30 

Janvier  18-71,  traduit  et  annote  par  K.  Glasson  .  .  .  E.   Lederlin  .  .  . 

]■'.  R.  Dareste  .  .  .  Paris,  [mprimerie nationale,  1887.    354  p. 
Gaupp,    Ludwig.     Die  civilprozessordnung  fur  das  Deutsche   Reich. 

Auf  der  grundlage  des  kommentars  von  I..  Gaupp,  erlautert   von 

Friedrich  Stein.     10th  ed.     Tubingen,  J.  C.  B.  Mohr,  1  1'.  Si. 

[910-1912.     J  v. 
'Seuffert,  Lothar.     Kommentar  zur  civilprozessordnung.     nth  ed     .  . 

Mum-Inn,  C.  H     Bed      [910-11.      2  v. 

■  Struckmann,  J.  &  Koch,  K  1  >ie  /is  ilprozessordnung  fur  das  I  leutsche 
Reich.    9th  ed.     Berlin,  Guttentag,  1910.     i-'ioji. 

8 Petersen,  Julius.  Die  civilprozessordnung  fur  das  Deutsche  Reich. 
5th  ed.  bearb  von  Ivnisi  Remele  .  .  .  (und)  Dr.  Ernst  Anger.  .  . 
Lain,  M.  Schausenburg,  mot  06.     2  v.    Supplement,  1910. 

1       1  ■         10 


I46        GUIDE  TO  THE  LAW  OF  GERMANY 

contains  prolific  annotations,  notes  and  discussions,  with  fre- 
quent references  to  the  history  and  sources  of  the  various 
sections  of  the  code;  decisions  of  State  courts  are  also  noted. 

Several  well-known  treatises  on  civil  procedure  deserve 
notice.  Prof.  J.  J.  Planck1  of  Munich  is  the  author  of  .a 
work  which  gained  high  scholarly  recognition,  but  is  now 
slightly  antiquated.  Historically  and  as  a  philosophical 
work  it  is  important.  Engelmann's3  two  volume  GeschichU 
und  system  is  a  prominent  work  on  the  historv  of  civil  pro- 
cedure. The  second  volume  is  to  be  translated  into  English. 
(See  footnote,  p.  46.)  An  important  treatise  on  the  subject 
is  that  by  Prof.  R.  Schmidt,3  of  Freiburg.  In  its  supplement 
of  1910,  it  covers  the  district  court  amendment  of  June  i, 
1909,  and  the  supreme  court  amendment  of  May  22,  1910. 
These  were  both  amendments  to  the  Judiciary  Act,  that 
of  1 910  simplifying  procedure  in  appeals  to  the  supreme 
court.  A  scholarly  work  on  the  law  of  civil  procedure  is  from 
the  pen  of  Prof.  Konrad  Hellwig,''  of  Berlin.  Up  to  1909, 
two  volumes  and  the  first  part  of  volume  3  had  been  pub- 
lished. It  examines  the  more  difficult  problems  of  civil  pro- 
cedure and  is  valuable  for  its  critical  discussions.  Prof. 
Hellwig 5  has  also  published  an  interesting  work  on  pro- 
cedure under  the  title  Anspruch  und  klagrecht.  A  second 
reprint  edition  of  this  work  appeared  in   1910.     The  history 

1  Planck,    Johann   Julius    Wilhelm     von.      Lehrbuch     des    deutschen 

civilprozessrechts  .  .  .  Nordlingen,  C.    H.  Beck,    1887-1S96.     2   v. 

2  Engelmann,  A.     Der  civilprozess;  Geschichte  und  system.     Breslau, 

Koebner,  1889-1895.     2  v. 

3  Schmidt,  Richard    Karl    Benihard.     Lehrbuch    des    deutschen  zivil- 

prozessrechts.  2d  ed.  Leipzig,  Duncker  &  Humblot,  1906.  11 13 
p.  Die  neuerungen  im  zivilprozessrecht.  Nachtrag  zur  zweiten 
auflage.     Leipzig,  Duncker  &  Humblot,  1910.      100  p. 

4  Hellwig,     Konrad.      Lehrbuch     des      deutschen      civilprozessrechts. 

Leipzig,  A.  Deichert  nachf.,  1903-1907.     1-3  v. 

5  Hellwig,     K.     Anspruch    u.    klagrecht.     2d     ed.     Leipzig,     Deichert, 

1910.     530  p. 


CIVIL   PROCEDURE  147 

of  civil  procedure  has  been  dealt  with  in  a  number  of  articles 
edited  in  a  two  volume  edition  by  Prof.  Kohler.1  A  work 
dealing  with  questions  of  procedural  reform  in  Germany  was 
published  by  Dr.  W.  Peters.3  It  is  a  comparative  study  of 
English  and  German  procedure,  in  the  course  of  which  a 
survey  is  presented  of  German  procedure  and  its  defects. 

The  German  reform  discussions  centering  around  the 
interpretation  and  application  of  the  written  law  by  the  judge 
(Rechtsanwendung)  have  given  rise  to  many  thoughtful  and 
critical  monographs,  among  which  those  by  Adickes  and 
Diiringer  deserve  special  mention.  A  review  of  Adickes' 
Zur  verstandigung  titer  die  jusHzreform  in  the  Journal  of 
Criminal  Law,  volume  2,  July  1911,  page  311,  gives  the 
principal  ideas  of  thai  noted  reformer.  "Attention  is  again 
directed  to  Prof.  Pound's  article  (Annual  Bulletin  of  Com- 
parative Law  Bureau,  1908,  pp.  31-36),  in  which  the  attitude 
of  the  three  current  schools  of  legal  thought  on  this  question 
of  procedural  reform  is  described  {supra,  p.  33).  As  an 
example  of  the  thoroughness  with  which  German  legislation 
is  undertaken  we  may  mention  the  proposed  reform  in  civil 
procedure.  In  preparation  for  this  undertaking  a  seven 
volume  work  on  the  law  of  civil  procedure  in  the  more  impor- 
tant States  of  the  world  is  to  be  prepared  by  Prof.  Jos. 
Kohler,  Prof.  Mendelssohn- Partholdy.  Prof.  Pagenstecher, 
and    Prof.  Wach. 

The  jurisdiction  of  German  courts  is  strictly  defined.  The 
procedure  and  circumstances  under  which  the  assistance  of 
other  German  and  foreign  courts  may  be  invoked  in  the 
administration  of  justice  is  known  under  the  name  of 
Recktshilfe.     It  includes  such  matters  as  service  of  process  in 

1  Beitrage  zur  geschichte   des   biirgerlichen   rechtsganges,  lirst;.  v.  Jos. 

Kohler.     Berlin,  E.  Weber,  mo;  1007.     2  v. 
1  Peters,  Wilibald.     Das  englische  burgerliche  streitverfahren  und  die 

deutsche  zivilprozessreform.     Berlin,  P.  Vahlen,  1908.     149  p. 


148  GUIDE   TO  THE   LAW   OF  GERMANY 

foreign  jurisdictions,  the  issuance  of  letters  rogatory  and  the 
effect  and  execution  of  foreign  judgments.  These  matters 
are  regulated  in  part  by  section  13  of  the  Judiciary  Act  of 
1877,  and  by  section  2  of  the  act  of  May  17,  1898,  concerning 
noncontentious  jurisdiction.  As  to  foreign  courts,  the  matter 
is  largely  regulated  by  the  treaties  of  the  German  Empire, 
especially  by  the  Hague  conventions  of  November  14,  1896 
and  July  17,  1905,  on  civil  procedure  and  by  the  general  princi- 
ples of  private  international  law  as  found  in  the  Introductory 
Act  to  the  Civil  Code.  Consular  jurisdiction  is  also  of  impor- 
tance in  this  connection.  The  entire  matter  concerns 
particularly  the  legal  position  of  foreigners  before  the  courts. 
The  leading  work  on  the  subject  is  the  Handbuch  des 
rechtshilfeverjahrens  by  Dr.  Hans  Delius1  (fourth  edition, 
191 1),  founded  on  the  work  of  Ferdinand  Bohm,  which  was 
published  under  the  same  general  title  in  1886.  Merchants' 
courts  (Kaujmannsgerichte),  for  the  arbitration  of  questions 
arising  between  merchants  were  established  by  the  law  of 
July  6,  1904.  A  commentary  on  this  law  was  published  in 
1905  by  Dr.  M.  von  Schulz.2 

Execution  against  movables  is  governed  by  Book  VIII 
of  the  Code  of  Civil  Procedure.  According  to  section 
869  of  this  code,  execution  against  real  property  is  to-  be 
governed  by  a  special  statute.  This  statute  was  enacted  on 
March  24,  1897,  and  promulgated  with  the  other  procedural 
codes  and  laws  on  May  20,  1898;  it  follows  very  closely  the 
provisions  of  the  earlier  Prussian  statute.  An  important 
commentary  on  the  act,  which  concerns  forced  sale  {Zwangver- 
steigerung)  and  sequestration  (Zwangsvcrwaltung)  in  execution 
proceedings  against  real  property  is  that  by  Judge  Theodor 

1  Delius,  Hans.  Handbuch  des  reehtshilfeverfahrens  im  Deutsehen 
Reiche  sowie  in  und  gegeniiber  dem  auslande.  4th  ed.  Niirn- 
berg,  Sebald,  1911.     53g  p. 

1  Schulz,  M.  v.  Das  reichsgesetz,  betreffend  kaufmannsgerichte  vom 
6  juli  rqo4,  erlautert.  Jena,  G.  Fischer,   1905.     385  p. 


COSTS   AND   FEES  1 49 

Wolf.1  Many  regulations  and  details  of  procedure  in  the 
matter  of  execution  were  left  t<>  State  legislation,  and  the 
author  in  his  commentary  takes  note  of  the  Prussian,  Bava- 
rian and  Saxon  regulations  under  the  appropriate  paragraphs 
of  the  imperial  statute.  The  Prussian  Ausfukrungsgesetz  is 
particularly  commentated.  Another  useful  commentary  with 
an  historical  introduction,  tracing  the  subject  from  Roman 
law  to  the  present  imperial  statute,  was  prepared  by  Prof. 
Otto  Fischer,-  of  Breslau;  the  second  edition  appeared  in 
1910.  Prussian  law  is  also  given  a  prominent  place  in  this 
work.  A  commentary  frequently  used  by  lawyers  is  that  of 
Dr.  P.  Jackel,3  the  fourth  edition  of  which  by  G.  Giithe  was 
published  in  191 1.  One  of  the  best  systematic  treatments  of 
the  subject  is  contained  in  a  work  by  F.  Kretzehmar.' 

The  law  of  costs  is  naturally  associated  with  the  law  of  pro-  ccsuand  Fees 
cedure.  The  law  on  this  subject  is  governed  by  four  statutes 
dealing,  respectively,  with  costs  and  fees  for  witnesses  and 
experts,  court  costs,  sheriffs'  fees,  and  attorneys'  fees.  The 
present  statutes  regulating  court  costs  came  into  force  on 
January  1,  1900.  They  were  substantially  amended  by  an  act 
of  June  1,  1909,  which  became  effective  April  1,  1910.  The 
law  on  tin-  subject,  including  its  new  amendments,  is  treated 
in  two  commentaries,  the  one  by  Or.  Pfafferoth,  of  the 
Department  of  Justice,  which  reached  :i  ninth  edition  at  the 


'Wolf,  'I'll.  «lor.     Das  reichsgesetz  Qber  die   zwangsversteigerung  und 
zwangsverwaltung,   Erlautert,    3d  ed.     Berlin,  C.  Heytnann,  ioog. 

66S  1 1 

Fischer,  otto  Die  gesetzgebung,  betreffend  die  zwangsvollstreckung 
in  das  unbewegliche  vermSgen  im  reiche  und  in  Preussen;  bearb. 
vim  Dr.  O.  Fischer  .  .  und  Dr.  L.  Schaefer  .  .  .  Berlin,  J. 
( luttentag,  100.?.     -^.\  p 

3  Jacket,  P.     Kommcntar  zum  zwangsversteigerungsgesetz.     (lli  ed.,  by 

G  Giithe.     Berlin,  Vahlen,  1911.    875]). 

4  Kretzehmar,  V.     Das  rcichsgesct/  iiber  die  zwangsversteigerung  u.  die 

zwangsverwaltung.     Leipzig,  Die terich,  1004.     434  p. 
'  Pfafferoth,  Carl.     Das  dcutsche  gerichtskostenwesen.     9th  ed.     Berlin, 
C.  Heymann,  1009.     523  p. 


150        GUIDE  TO  THE  LAW  OF  GERMANY 

end  of  1909;  the  other  by  Otto  Rittmann,1  assessor  of  costs  in 
the  Alsace  Ministry  of  Justice,  which  appeared  in  the  same 
year.  The  question  of  costs  in  every  form  of  action  is  dealt 
with.  The  procedure  for  establishing  and  fixing  costs,  as  well 
as  the  amended  statute  for  regulating  the  fees  of  attorneys  is 
I  he  subject  of  an  important  work  by  Dr.  W.  Willenbucher,2 
judge  of  the  court  of  appeal.  The  seventh  edition  by  Simeon 
and  Fischer  was  published  in  1910.  The  amendment  of  the 
original  act  of  1879  to  regulate  attorneys'  fees,  including 
the  acts  of  June  1,  1909,  and  May  22,  1910,  receive  attention. 
The  various  German  States  retain  jurisdiction  over  certain 
detailed  regulations  concerning  attorneys'  fees,  and  the 
State  statutes,  which  really  supplement  the  imperial  legis- 
lation on  the  subject,  are  also  covered  by  the  work.  The 
chapters  on  the  imperial  law  are  in  the  form  of  a  commentary. 
Attorneys  at      An  article  by  Dr.  Otto  Simon,  giving  a  brief  account  of  the 

Law 

social  position  of  the  German  lawyer  and  his  code  of  ethics, 
appears  in  the  Green  Bag,  volume  22  (July,  1910),  pages 
391-393,  and  is  reprinted  in  the  American  Legal  News  of 
that  month  and  in  the  Law  Student's  Helper  for  September. 
The  leading  commentary  on  the  statute  governing  attorneys- 
at-law,  is  that  edited  by  Adolf  and  Max  Friedlander,11  which 
appeared  in   1908. 

Two  important  periodicals  dealing  with  civil  procedure  are 
the  Archil1  fur  tin   civUistische  praxis*  founded  in  1818,  and 

1  Rittmann,   Otto.      Das  deutsche    gerichtskostengesetz,  erlautert  .  .  . 

4th  ed.     Mannheim  und  Leipzig,  J.  Bensheimcr,  1909.     648  p. 
-'  Willenbiicher,  W.      Das   kostenfestsetzungsverfahren  u.  die  deutsche 

Gebtihrenordnung  fur  reehtsanwalte  nebst  die   landesgesetzlichen 

vorschriften  in  Preussen,  Bayern.  Sachsen.  Wiirttemberg  u.  Baden. 

7th  ed..  by  Simeon  S:  Fischer.     Berlin,  Midler,  1910.     349  p. 

3  Friedlander,  A.  &  M.     Kommentar  zur  rechtsanwaltsordnung  vom  1. 

juli  1878.     Mi'tnchcn.  J.  Schweitzer,  1908.     371  p. 

4  Archiv  fur  die  civilistische  praxis,  edited  by  Heck,  Pumelin,  Wondt, 

Biilow  &  Kohlhaas.     Tubingen,  Mohr.  i8i8andcont. 


NONCONTKNTIOUS   JURISDICTION  I  SI 

the  Zeitschrifi  fur  deutschen  zivUprozess,1  now  edited  by 
Schultzenstein  and  Vierhaus,  volume  i  of  which  appeared  in 
1879. 

NONCONTENTN  'IS   JURISDICTION 

Under  this  term  the  Germans  include  such  action  by  public 
authorities,  either  courts  or  notaries,  as  is  necessary  to  give 
official  sanction  to  legal  rights  or  to  create  them.  It  maybe 
called  ex  parte  procedure.  It  is  invoked  in  such  cases  as  the 
following:  the  appointment  of  a  guardian  or  administrator, 
the  probate  of  a  will,  the  registration  of  documents  such  as 
deeds  and  mortgages  and  other  real  estate  transactions,  the 
registration  of  various  kinds  of  contracts,  such  as  marriage 
contracts  and  commercial  agreements,  the  registration  of 
trademarks  and  designs,  and  in  a  great  number  of  other  special 
cases  which  may  be  grouped  under  the  general  head  of  the 
judicial  authentication  of  legal  instruments.  In  these  matters, 
the  court  usually  acts  in  an  administrative  capacity. 

Noncontentious  jurisdiction  is  provided  for  in  the  Act  of 
May  17,  1898,  in  the  Land  Registry  Act  of  March  24,  1897 
(Grundbuchordnung),  in  the  Civil  Code  (the  authentication  of 
wills),  in  the  Commercial  Code  (in  tin-  matter  of  registering 
certain  kinds  of  associations),  in  the  Trademark  Act,  and  in 
other  statutes.  The  jurisdiction  is  vested  almost  exclusively 
in  the  hands  of  the  district  courts,  with  appeal  to  the  Superior 
courts,  and  for  error  in  law,  to  the  court  of  appeal,  whose 
jurisdiction  is  final.  An  excellent  article  011  the  subject  of 
noncontentious  jurisdiction  in  Germany  was  published  by 
Judge  Walter  Neitzel,  a  collaborator  of  Judge  von  I.ewinski 
in  the  I.cskc  Lowenfeld  publication  {supra,  p.  14.1).  It 
appears  in  the  Harvard  Law  Review,  volume  21  (ic>o8),  pages 
476-494.      Probably  the  best  commentary  on  the  subject    is 

1  Zeitschrift  fur  deutschen  zivUprozess  mid  dasverfahren  in  iinge-Iegen- 
heiten  det  freiwilligen  gerichtsbarkeit  .  .  .  1879-1910.  40  v.  Ber- 
lin, C.  HiYin.mn,  1879  and  cont. 


152        GUIDE  TO  THE  LAW  Of  GERMANY 

that  by  Schultze-Gorlitz  '  and  Oberneck,  which  annotates 
fully  both  the  imperial  and  the  Prussian  law  as  enacted  in  the 
Ausjuhrungsgcsetz  of  September  21,  1899.  J.  Rausnitz  2  pub- 
lished a  useful  commentary  on  the  subject  which  appeared  in 
1900.  A  handy  annotated  edition  of  the  law  was  prepared 
by  Dudek 3  and  Lindemann,  the  second  edition  of  which 
appeared  in  1908.  All  the  sections  relating  to  noncontentious 
jurisdiction  in  the  other  codes  and  statutes  which  have  been 
mentioned,  as  well  as  the  Prussian  Ausfiihrungsgesetz  receive 
careful  attention. 

Notarial  law  bears  a  most  intimate  relation  to  nonconten- 
tious jurisdiction.  Form  books  for  the  notary  and  adminis- 
trative officer  in  noncontentious  matters  are  published  fre- 
quently in  new  editions.  The  one  in  most  general  use  is  the 
two  volume  work  by  Jastrow.4  Two  other  form  books  of  good 
reputation  are  edited  respectively  by  Weissler5  and  by  Gold- 
maiin  and  others.6 

The  decisions  in  matters  of  noncontentious  jurisdiction 
together  with  land  registry  decisions  are  published  in  a  vol- 
ume edited  annually  by  the  Department  of  Justice.7 


1  Schultze-Gorlitz,  R.  u.  Oberneck,  H.  Gesctz  iiber  die  angelegenheitcn 

der  freiwilligen  gerichtsbarkeit.     Berlin,  Hermann,  njoo.     2  v. 

2  Rausnitz,  J.     Das  reichsgesctz  iiber  die  angelegenheitcn  der  freiwilligen 

gerichtsbarkeit.     Berlin,  !•'.  Vahlen,  iyoo.     384  p. 
*  Dudek,  H.  &  Lindemann,  O.     DasreichsgesetziiberdicangelegenheiUn 
der  freiwilligen  gerichtsbarkeit,  unter  mitwirkung  von  Eugen  Ebcrl. 
.     .     .     erlautert  von  Heinrich  Dudek     .     .     .     (und)  Otto  Linde- 
mann    .     .     .     2d  ed.     Breslau,  M.  &  H.  Marcus,  1908.     535  p. 

4  Jastrow,  Hermann.     Formularbuch  und  notariatsrecht.     Im  anschluss 

an  das  C.  F.  ICoch'sche  Formularbuch.  bearb.  von    Hermann   Jas- 
trow    .     .     .     15th  ed.     Berlin,  J.  Guttcntag,  iyio.     2  v. 

5  Weissler,  Adolf.     Formularbuch  fur  freiwillige  gerichtsbarkeit,     .     .     . 

12th  ed.  Berlin,  C.  Heymann,  1911.     444  p. 

6  Formularbuch  ftir    die    freiwillige    gerichtsbarkeit.      Auf    veranlassg. 

des  Berliner  Anwaltvereins  hrsg.  v.  R.  Goldmann,  E.  Heinitz,  W. 
Loewenfeld,  J.  Rausnitz.     3  ed.     Berlin,  C.  Heymann,  191 1.     974  p. 

7  Entseheidungen   in   angelegenheiten   der  freiwilligen   gerichtsbarkeit 

u.  desgrundbuchrechts.     Hrsg.  im  Reichsjustizamt.     11  v.  and  index 
to  v.  1-10.     Berlin,  Puttkammer  &  Muhlbrecht,  1900  and  cont. 


CRIMINAL    LAW  153 

CRIMINAL  LAW 

Criminal  law  by  customary  legal  classification  is  a  division 
of  public  law.  However,  as  works  dealing  with  public  law 
usually  exclude  criminal  law  from  treatment  it  is  considered 
advisable  to  discuss  criminal  law  at  this  point. 

The  Romans  made  no  great  distinction  between  civil  and 
criminal  law.  Nevertheless  they  were  far  advanced  in  their 
notions  of  public  prosecution  and  punishment  of  crimes,  and 
the  penetration  of  their  ideas  into  ecclesiastical  law  gave 
definite  shape  to  the  theory  that  crime  was  a  sin  against  God. 
German  criminal  law  consisted  in  the  Middle  Ages  of  the  old 
Roman  law  developed  and  remolded  by  the  Italian  jurists  to 
suit  the  needs  of  more  modern  times.  This  period  of  develop- 
ment reached  a  definite  climax  in  the  publication  by  the  Baron 
of  Schwarzenberg  of  the  Constitutio  Criminalis  Bambergensis 
which  in  turn  became  the  model  for  the  Constitutio  Criminalis 
Carolina,  the  criminal  code  of  Kmperor  Charles  Y,  enacted  in 
1532.  This  code  was  the  fundamental  criminal  law  of  Ger- 
many up  to  the  nineteenth  century.  It  lias  exercised  a  per- 
manent influence  on  German  criminal  law.  The  best  edition 
of  both  the  Bambergensis  and  the  Carolina  Codes  is  thai  by 
Profs.  Kohler  '  and  Scheel,  published  in  1900.  A  work  deal 
ing  with  the  sources  of  criminal  law  apart  from  the  Carolina 
Code  was  edited  by  Prof.  Kohler'  and  published  in  Mannheim 
(1907-19'")).  An  excellent  history  of  German  criminal  law 
was  published  by  the  celebrated  Prof,  von  Bar,'  of  Gottin 
His  Gest  kit  hte  des  deutsi  In  >i  ttrafn  chis  which  appeared  in  1882 


'  Carolina  cunstilutio  criminalis.  Die  peinliche  gericlilsonlnuug  Kaiser 
Karls  V.     Kritiseh  hrsg.  von  J.  Kohler     .  unci  Willy  Scheel 

.     .     .    Halle,  Buchhandlung  des  Waisenhauses,  jyoo.     ir>;  p. 
lien  zur  geschichte  des  strafrechts  ausserhalb  des  Caxolinakreises. 
Herausgegeben  van  Kohler.     Mannheim,  J.  Bensheimer,  kjo; 

3  liar,  L.  v^n.  Handbuch  des  deutschen  strafrechts  lid.  [.Geschichte 
des  deutschen  strafrechts.  u.  der  strafrechts-theorien.  v.  1.  Berlin, 
Weidmann,  1882.     361  p. 


154  GUIDE   TO   THE    LAW   OF  GERMANY 

will  be  translated  into  English  under  the  auspices  of  the  com- 
mittee editing  the  Continental  Legal  History  Series  (see 
footnote,  p.  46). 

The  Penal  Code  now  in  force  in  Germany  is  that  of  May  15, 
1 87 1  with  its  amendments.  The  first  draft  was  published  in 
1869  and  the  code  itself  was  finished  in  1870  before  the  Empire 
was  founded.  This  code  was  modeled  on  the  Prussian  criminal 
code  of  April  14,  1851,  which  was  based  largely  on  the  maxims 
of  the  old  Napoleonic  Code  Penal  of  1810.  The  first  draft  of  a 
fresh  Penal  Code  was  completed  in  1 909  and  has  already  been 
submitted  to  the  public  for  discussion  and  criticism.  It  is 
probable  that  within  a  short  time  the  new  penal  code  will  be 
enacted  into  law. 

A  translation  of  part  one  of  the  1871  code,  which  includes 
the  first  seventy-nine  sections,  appears  in  the  Law  Magazine 
and  Review,  New  Series,  volume  1  (1872),  pages  653-667. 
Three  learned  articles  on  the  early  criminal  law  and  courts  of 
Germany  were  published  in  the  thirties.  Two  of  these  are 
from  the  pen  of  the  celebrated  authority,  Prof.  K.  I.  A.  Mitter- 
maier.  In  an  able  article  in  the  Law  Magazine  and  Review, 
volume  15  (1836),  pages  1 19-128,  the  older  literature  of 
criminal  law  is  critically  discussed.  In  the  second  article  by 
the  same  author,  published  in  the  American  Jurist,  volume  24 
(1840),  pages  62-79,  the  sources  of  criminal  law  in  Germany 
and  the  State  codes  in  existence  at  that  time  are  discussed  and 
the  administration  of  criminal  law  compared  with  that  of  the 
United  States.  In  an  article  in  the  Law  Magazine  or  Quarterly 
Review,  volume  11  (1834),  pages  1-23  there  is  a  discussion  of 
penological  theories  with  a  critical  account  of  the  older  writers 
on  criminal  law  and  their  works. 

The  Penal  Code  of  1871  was  translated  into  English  by 
Geoffrey    Drage1    (London,    1885).      Prof.   Wolfgang    Mitter- 

1  Dragc,   G.      The  criminal  code  of  the  German   Empire.     Translated 
by  Geoffrey  Drage.     London,  1885.     365  p. 


CRIMINAL   LAW  155 

maier,  of  Heidelberg,  while  characterizing  the  translation  as 
able,  nevertheless  finds  the  translator  guilty  of  some  mis 
conceptions.  An  excellent  account  of  the  criminal  law  of 
the  German  Empire  presenting  systematically  the  theories 
underlying  the  code  and  its  principles  was  written  by  Prof. 
Wolfgang  Mittermaier,  of  Heidelberg  and  Berne,  the  son 
of  the  renowned  K.  I.  A.  Mittermaier.  This  article  was  pre- 
pared at  the  request  of  S.  J.  Barrows,  commissioner  of  the 
United  States  on  the  International  Prison  Commission,  and 
published  in  the  reports  prepared  for  this  commission.  It 
appears  as  House  Document  489,  Fifty-sixth  Congress,  second 
session,  pages  81-104  (Washington,  Government  Printing 
Office,  1901).  The  entire  criminal  legislation  of  Germany  was 
edited  in  nine  small  volumes  of  text  editions  by  Dr.  Justus 
Olshausen,1  Federal  district  attorney.  A  small  but  useful 
annotated  edition  of  the  Penal  Code,  including  references  to 
the  decisions  of  the  State  courts  and  to  the  authoritative  com- 
mentaries was  edited  by  Wilhelm  Henle  -  and  Franz  Schier- 
linger  (2ded.,  1903,  with  supplement  1907). 

The  leading  commentary  on  the  German  Penal  Code  is  that  by 
Justus  Olshausen  .'which  reached  its  eighth  edition  in  11)09-10. 
Another  commentary,  very  popular  with  German  lawyers, 
is  from  the  pen  of  Prof.  Reinhard  Frank4;  the  eighth  to  tenth 
edition  was  published  in  191  1.  Criminal  provisions  are 
scattered   throughout    many  statutes    and   sections  of    slat- 


1  Olshausen,  Justus.  Die  strafgesetzgebung  des  Deutschen  Reichs.    Tex- 

tausgabe  mit  anmerkungen     .     .     .     Berlin,  F.  Vahlen,  njoo  1903. 

9  v. 
Henle,  Wilhelm.     Das  strafgesetzbuch  fur  das  Deutsche  Reich  in  seiner 

gegenwartigen  gestalt.     Handausgabe  mit  erlauterungen  von  W'il- 

helm  Henle  .     .     und  Dr.  Fran/  Schierlinger     ...     2d  ed. 

Mitnachtrag.     Munchen,  C.  H    Beck,  1903,  1907.     444  p. 
'Olshausen,    Justus.      Kommentar     zum     strafgesetzbuch     fur     d.is 

Deutsche  Reich.    8th  ed.,  Berlin,  F.  Vahlen,  1909  10.    2  v. 
*  l-'r.ink,    Reinhard.     Uis   strafgesetzbuch    fur    das   Deutsche    Reich. 

8-iothed.    Tubingen,  J.  C.  B.  Mohr  (P.  Siebeck),  1911.    671  p. 


156        GUIDE  TO  THE  LAW  OF  GERMANY 

utes.  A  special  commentary  dealing  with  these  incidental 
penal  provisions  was  edited  by  Dr.  M.  Stenglein,1  a  former 
justice  of  the  supreme  court  of  Germany;  it  began  to  appear 
in  its  fourth  edition  in  1909.  The  principles  of  German 
criminal  law  in  concise  statement  are  presented  by  Prof. 
Karl  Binding,'-'  the  learned  jurist  of  Leipzig,  in  his  " Grundriss." 
The  history  of  criminal  law  from  the  Carolina  Code  (1532) 
to  modern  times  is  combined  with  a  summary  account  of  the 
content  of  criminal  law  in  its  objective  and  subjective  aspects. 
The  work  contains  extensive  bibliographic  references. 

The  leading  treatise  on  criminal  law  is  that  by  the  renowned 
Prof.  Liszt,3  of  Berlin,  the  eminent  authority  on  criminal  law 
and  criminology.  The  eighteenth  edition  was  published  in 
191 1 ;  a  French  translation  has  also  just  been  published  by 
Giard  and  Briere,  of  Paris.  A  work  now  used  in  some  of  the 
universities  of  south  Germany  is  the  treatise  of  Prof.  H.  Meyer,4 
edited  by  Allfeld,  known  as  the  " Meyer-AUfeld  Lehrbuch." 
The  seventh  edition  has  recently  been  issued.  Its  continued 
use  in  preference  to  the  work  of  Liszt  appears  to  be  due  to  the 
conflict  between  Profs.  Birkmeyer  and  Liszt  in  their  theories 
of  criminal  law.  Prof.  Binding"'  is  the  author  of  an  able 
treatise  on  criminal  law  which  was  originally  a  continuation 
of  the  fifth  edition  of  his  "Grundriss."  The  last  volume  of 
the  second  edition  of  the  treatise  appeared  in  1905.     Another 

1  Stenglein 's  Kommentar   zu    den  strafrechtlichen    nebengesetzen   des 

Deutschen  Reiches.     4th  ed.     vollig    neubearbeitet    von   Ludvvig 

Ebermayer,   Franz   Galli,   Georg   Lindenberg.     Berlin,  Otto   Lieb- 

mann,  1909-1911.     2  v.  and  cont. 
-  Binding,    Karl.     Grundriss    des    deutschen    strafrechts,     allgemeiner 

teil  .  .  .  7th  ed.     Leipzig,  W.  Englemann,  1907.     271  p. 
3  Liszt,  Franz  von.     Lehrbuch    des    deutschen    strafrechts.     18th    ed. 

Berlin,  J.  Guttentag,  1911.     689  p. 
1  Meyer,    H.     Lehrbuch     des     deutschen    strafrechts,    bearbeitet    von 

Allfeld.     7th  ed.     Leipzig,  Deichert,  1911. 
s  Binding,     Karl.     Lehrbuch     des     gemeinen    deutschen     strafrechts, 

besonderer  teil.     Leipzig,  W.  Engelmann,  1902-1905.     2  v. 


CRIMINAL   LAW  157 

good  treatise  on  German  criminal  law  is  by  Prof.  Finger,1  of 
Halle.  To  date,  only  one  volume,  which  appeared  in  1904, 
has  been  published.  It  is  well  provided  with  bibliographic 
notes.  Prof.  Bemer,2  an  eminent  scholar  and  authority  in 
German  criminal  law,  wrote  a  treatise  on  the  same  subject. 
The  eighteenth  and  last  edition  was  published  in  1898.  It 
gives  an  excellent,  although  brief  account  of  the  history 
and  sources  of  German  criminal  law  before  and  after  the 
Carolina. 

A  useful  dictionary  of  criminal  law  in  the  form  of  an  index 
digest  to  the  criminal  decisions  of  the  supreme  court,  was 
edited  by  Dr.  M.  Stenglein,'1  formerly  judge  of  that  court, 
whose  commentary  has  been  mentioned  supra.  Two  vol- 
umes appeared  in  1900  and  a  supplement  by  F.  Galli  brings 
the  work  down  to  1904.  A  work  dealing  essentially  with 
criminal  law  in  its  administrative  aspects  from  an  historical 
and  comparative  standpoint,  by  Dr.  James  Goldschmidt,' 
now  professor  in  Berlin,  gives  evidence  of  much  scholarly 
research. 

There  are  some  important  German  periodicals  on  the  sub- 
ject of  criminal  law.  The  oldest  is  the  one  known  as  Goltdam- 
mers  Archil/'  which  was  founded  in  1853  and  is  now  edited 
by  Prof.  Kohler  of  Berlin.     Another  prominent  periodical  is 

1  linger,   August.     I.chrbuch    des    deutschen    strafrechts.     Berlin,    C. 
Heymann's  verlag,  1904.     1  v. 

*  Boner,  Albert  Friedrich.     Lehrbucb  des  deutsches  strafrechts.     t8th 

ed.     Leipzig.  B.  Tauchnitz,  [898.     752  p. 
3  Stenglein,  Melchior.     Lexikon  des  deutschen  strafrechts;   nach  den 
entscheidungeu  des  Reichsgerichts   zum   strafgesetzbuche   zusatn- 
mengestellt  und  hrsg.  von  Dr.   M.  Stenglein,  .   .   .    Berlin,  i>,  Lieb- 
inaun,  1900.    2v.  and  supplement. 

*  Goldschmidt,    James    Paul.     Das    verwaltungsstrafrecht.     Berlin,    C. 

Heyuumn,  kjoj.      603  p. 

'.^reliiv  fur  strafrecht  u.  strafprozess,  founded  by  Goltdammer.     Ber- 
lin, R.  v.  Decker,  1.S5S  and  cunt. 


I58  GUIDE   TO   THE    LAW   OF   GERMANY 

the  Zeitschrift  fur  die  gesamte  strafrechtswissenschaft,1  now 
edited  by  Profs.  Liszt  and  Lilienthal,  both  eminent  authorities. 
It  was  founded  in  1881.  This  periodical,  which  is  the  organ 
of  the  International  Union  of  Criminal  Law  {Internationale 
Kriminalistische  Vereinigung)  publishes  a  supplement  under 
the  title  XI  itteilungen  der  international  en  kriminalistischen 
vereinigung  which  also  appears  occasionally  in  French.  The 
supplements  deal  with  the  criminal  codes  of  foreign  countries 
or  present  special  studies  on  foreign  criminal  law.  Transla- 
tions of  foreign  codes  into  the  German  language  are  also  pub- 
lished by  the  association. 

The  subject  of  German  criminal  law  would  be  left  incomplete 
if  mention  were  not  made  of  the  great  names  of  Feuerbach, 
Grolman,  Kleinschrodt  and  Mittermaier,  whose  works, 
although  for  practical  purposes  now  antiquated,  exercised  a 
potent  influence  on  the  development  of  criminal  law  in 
Germany. 

CRIMINAL  PROCEDURE 

The  establishment  and  jurisdiction  of  criminal  courts  is 
provided  for  in  the  Judiciary  Act  of  January  27,  1877,  to 
which  reference  has  already  been  made.  The  Code  of  Criminal 
Procedure  was  one  of  the  four  great  codes — Bankruptcy  Act, 
Judiciary  Act,  Codes  of  Civil  and  of  Criminal  Procedure,  enacted 
during  the  law  reform  movement  of  1877.  Hahn's  Die  ge- 
sammten  materialien  zu  den  reichsj  ustizgcsetzen  (Berlin,  Decker, 
1897-1909)  report  the  drafts,  "motives,"  and  summarized 
debates  connected  with  the  enactment  of  all  the  more  impor- 
tant imperial  statutes  The  Code  of  Criminal  Procedure  was 
enacted  February  1,  1877,  and  went  into  effect  on  October  1, 
1879.  The  draft  of  a  new  code  of  criminal  procedure  is  now 
before  the  Bundesrat. 

1  Zeitschrift    fur    die     gesamte     strafrechtswissenschaft.      Berlin     und 
Leipzig,  J.  Guttentag,  1881  and  eont. 


CRIMINAL    PROCEDURE  1  S<) 

German  criminal  procedure  is  based  largely  on  the  French 
S]  Stem,  but  it  has  been  modified  by  the  incorporation  of  many 
provisions  of  English  origin.  The  best  account  in  English 
of  German  criminal  procedure  is  that  prepared  by  Prof. 
Wolfgang  Mittermaier,  of  Heidelberg  and  Berne,  for  the  Inter- 
national Prison  Commission.  It  is  included  in  a  report  sub- 
mitted by  the  United  States  commissioner  to  the  Secretary  of 
State,  and  is  published  in  House  Document  489,  Fifty- 
sixth  Congress,  second  session,  pages  104-122.  Besides  a 
brief  historical  account,  it  discusses  most  learnedly  the 
theories  and  principles  of  German  criminal  procedure,  and 
presents  a  valuable  analysis  of  the  provisions  of  the  cock-  of 
1877. 

The  older  criminal  procedure  of  Germain-  is  discussed  in  an 
article  in  the  American  Jurist,  volume  19  (1838),  pages 
332-349.  It  is  a  translation  of  an  article  by  Foelix  in  the 
Revue  etrangkre  et  frangaise,  December  1836,  which  was 
founded  on  Mittermaier's  great  work  Das  deutsche  strafver- 
fahren  (Heidelberg,  2d  ed.,  1832-33).  The  article  presents 
Mittermaier's  philosophy  of  criminal  law.  A  learned  account 
of  the  history  anil  principal  features  of  German  criminal  pro- 
cedure from  the  earliest  days  to  the  present  German  code,  is 
contained  in  an  article  by  H.  A.  D.  Phillips  in  the  Law  Quar- 
terly Review,  volume  10  (1894),  pages  16-31.  Incidental 
comparisons  with  the  French  and  Austrian  codes  lend  added 
interest  to  the  article.  Another  good  account  of  criminal 
courts  in  Germany  was  written  by  B.  L.  Moseley  under  the 
title  "Criminal  courts  and  procedure  in  Germany."  It 
appeared  in  the  Law  Magazine  and  Review,  fourth  series, 
volume  10  (1SS4),  pages  263-283,  369-412.  lie  treats  the 
subject  by  way  of  comparison  wi'.li  the  French,  Austrian  and 
English  systems  and  enters  into  a  critical  discussion  of  the 
principal  features  of  tin  German  Code.  Another  critical  dis- 
cussion    nf    the    provisions   of    this    rode  was  published    by 


l6o        GUIDE  TO  THE  LAW  OP  GERMANY 

Edward  Zimmerman  in  the  Law  Magazine  and  Review,  fourth 
series,  volume  i  (1875),  pages  103-112.  A  popular  account  of 
the  procedure  in  a  criminal  trial  was  published  in  the  Journal 
of  Jurisprudence,  volume  34  (1890),  pages  569—579.  The 
article  describes  the  celebrated  Vering  trial  and  incidentally 
discusses  the  German  duelling  "code."  An  able  article  by 
Hurt  Estes  Howard  on  "Trial  by  jury  in  Germany"  was 
published  in  the  Political  Science  Quarterly,  volume  19  (1904), 
pages  650-672.  A  good  French  translation  of  the  German 
Code  of  Criminal  Procedure  was  edited  with  notes  by  Fernand 
Daguin,1  the  learned  secretary  of  the  French  Societe  dc  Ligis- 
lalion   Comparer  at   the  instance  of  the  French  Government. 

A  handy  edition  of  the  Code  of  Criminal  Procedure  is  that 
edited  by  Dr.  P.  Daude,2  former  district  attorney.  All  the 
amendments  up  to  that  of  June  5,  1905,  are  taken  into  account 
as  well  as  all  the  laws  relating  to  criminal  procedure.  It  is 
annotated  with  the  decisions  of  the  imperial  supreme  court. 
An  excellent  commentary  upon  the  code,  the  one  regarded  as 
the  standard  work,  was  edited  by  Dr.  E.  Lowe,3  formerly  pre- 
siding justice  of  the  imperial  supreme  court  at  Leipzig.  Since 
his  death  Prof.  Hellwig  has  edited  the  commentary,  which  in 
its  twelfth  edition  appeared  in  1907. 

The  most  scientific  treatise  on  the  subject  of  criminal  pro- 
cedure is  the  Handbuch  in  three  volumes  by  Prof.  Julius 
Glaser,1  the  noted  Viennese  jurist.      It  appears  as  a  part  of  the 

1  Daguin,    Fernand.      Code  de  procedure   penale  allemand    (i    fevrier 

1877)  traduit  et  annote  par  Fernand  Daguin  .  .  .  Paris,  Impri. 
merie  nationale ,  1884.     404  p. 

2  Daude,  P.     Die  Strafprozessordnung  fur  das  Deutsche  Reich  vom  1. 

februar  1S77  und  das  Gerichtsverfassungsgesetz  vom  27.  januar  1S77. 
17.  mai  1898,  5.  juni  1905.  7th  ed.  Berlin,  H.  W.  Miiller.  1908. 
424  p.     Sth  ed.  by  Oppermann,  announced  1912. 

3  Lowe,    E.      Die    Strafprozessordnung    fur  das    Deutsche   Reich.    12th 

ed.  bearh.  von  Dr.  A.  Hellwig  .  .  .  Berlin.  J.  Guttentag,  1907. 
1066  p. 

4  Glaser,      Julius      Anton.      Handbuch     des     strafprozesses.      Leipzig, 

Duncker  &  Humblot,  iSS^-1907.     3  v. 


CRIMINAL   PROCEDURE  l6l 

Binding  series.  Naturally,  Austrian  law  receives  much  atten- 
tion. An  appreciation  of  Glaser's  great  work  and  influence 
is  found  in  a  little  pamphlet  by  Prof.  Unger,  chief  justice  of 
Austria,  entitled  Nachruf  auf  Glaser  (W'ien,  1885).  The 
third  volume,  which  deals  with  procedure  in  jury  and  lay- 
men's courts  [Schwur-  and  Schofjengerichte)  was  written 
by  Prof.  Friedrich  Oetker,  of  Wurzburg. 

A  most  useful  work  outlining  the  law  of  criminal  procedure, 
is  written  by  Prof.  Karl  Binding,'  his  well-known  Grundriss  of 
criminal  procedure  (5th  ed.,  10041.  It  follows  somewhat  the 
methods  of  his  Grundriss  on  criminal  law.  A  work  which 
deserves  attention  by  reason  of  the  prominence  of  its  author 
in  the  movement  for  the  reform  of  criminal  law  and  procedure 
is  the  Deutsches  ttrafprozessrecht  (1898)  by  Dr.  Karl  Birk- 
uieyer.-  of  Munich,  tlie  editor  of  the  well-known  Encykhpadie. 

Procedure  in  jury  courts  (Schwunjiiichle)  has  been  the 
subject  of  a  number  of  articles  in  English.  The  best  of  those 
dealing  with  the  recent  practice  is  by  Prof.  Burt  Estcs  Howard, 
which  appeared  in  the  Political  Science  Quarterly,  volume  10 
(19041,  pages  630-072.  The  operation  of  the  jury  system  in 
Germany  is  discussed,  from  the  selection  of  the  jurymen  until 
final  verdict.  Some  older  articles  written  prior  to  the  Judi- 
ciary Act  of  1877  and  the  code  of  that  year,  were  published  by 
Dr.  Edward  Zimmerman,  in  the  American  Paw  Record, 
volume  3  (1874),  pages  1-18,  129  [39,  and  an  appendix  to 
the  articles  in  the  same  volume,  pages  356  363.  The  articles 
were  reprinted  in  the  Law  Magazine  and  Review  of  1874. 
A  practical  study  on  procedure  in  jury  courts  was  pub- 
lished by  Judge  J.  Feddersen  '  in  1907.     The  decisions  of  the 

Binding,  Karl.    Grundriss  des  deutschen  strafpro'zessrechts.     ;th  ed. 

I.rip/ij;,   IhimkiT  &  Huinhlot,   i<<0|       <oi  |>. 

2  Birkmeyer,   K.     Deutsches  straiprozessrecht.      Berlin,   11    W.  Muller, 

1898.      S;<)  p. 

;  Feddersen,  J.     Das  Schwurgericht.     Berlin,  Otto  Liebmann,    njo;. 
24-1  p. 

74°— 12 11 


1 62  GUIDE   TO   THE   LAW   OF   GERMANY 

Supreme  Court  are  specially  noted.  In  the  matter  of  jury- 
courts  attention  is  directed  to  the  volume  by  Oetker  in 
Glaser's  Handbuch  and  especially  to  Brunner's  '  celebrated 
historical  treatise  on  the  origin  of  the  jury  system.  This 
work  is  an  example  of  the  highest  type  of  German  scholarship. 
Under  the  head  of  "Death  sentences  in  Germany,"  Dr.  H. 
Becker  shows,  in  an  article  in  the  Green  Bag,  volume  21 
(vSeptember,  1909),  pages  433-436,  that  death  sentences  in 
Germany  with  rare  exceptions  are  only  carried  out  where 
there  is  a  confession  of  guilt. 

Recent  contributions  to  the  literature  of  criminal  pro- 
cedure are  discussed  by  Prof.  Beling  of  Tubingen  in  a  series  of 
short  reviews  in  the  Zeitschrijt  fur  die  gesamte  strafrechts- 
wissenschaft,  volume  31  (191 1),  Heft  7,  pages  737-748. 

Germany  has  enacted  two  progressive  and  useful  statutes, 
the  object  of  which  is  to  have  the  State  compensate  those 
individuals  who  have  been  unjustly  convicted  or  unjustly 
arrested  and  arraigned,  for  the  material  injuries  suffered. 
Austria,  France,  Sweden,  Norway,  Denmark,  and  Hungary 
had  preceded  Germany  in  enacting  laws  on  the  subject. 
The  law  of  May  20,  1898,  which  provides  for  compensa- 
tion for  those  unjustly  convicted  who  on  second  trial  or 
under  the  disclosure  of  new  evidence  have  been  declared 
"not  guilty"  by  the  judgment  of  a  competent  court,  was 
followed  by  the  law  of  July  14,  1904,  which  provided  that 
those  unjustly  arrested  and  arraigned  should  be  compensated 
for  the  material  injuries  suffered.  A  good  commentary  on 
the  two  laws  was  written  by  Dr.  Eduard  Burlage,-  the  chair- 
man of  the  Reichstag  committee  which  reported  the  law  of 

1  Brunner,  H.  Die  entstehung  der  schu-iirgerichte.  Berlin,  Wied- 
mann,  1872.  478  p. 
Burlage,  Eduard.  Die  entschadigung  der  unsehuldig  verhafteten 
und  der  unsehuldig  bestraften.  Kommentar  zu  den  reichsgesetzen 
vom  14.  juli  iqo4  und  20.  mai  1898.  Berlin,  O.  Liebmann,  1905. 
157  P- 


MILITARY    CRIMINAL    LAW  163 

1904.  Besides  the  commentary,  the  author  gives  an  inter- 
esting account  of  the  principles  underlying  the  law  and  of  its 
general  content.  An  historical  survey  of  the  antecedents  of 
the  law,  together  with  a  useful  commentary,  was  written  by 
Judge  Johannes  Krause.1  A  monograph  discussion  on  the 
substantive  and  procedural  elements  of  the  laws  in  question 
was  published,  for  the  practitioner,  by  Dr.  Otto  Kahler.2 

MILITARY    CRIMINAL    LAW 

The  Penal  Cock-  for  the  army  and  navy  {MUitarstrafgesetz- 
buch)  of  June  20,  1872,  was  translated  into  English  bv  Maj. 
W.  Winthrop,3  judge  advocate  of  the  United  States  Army. 
A  good  commentary  on  the  Military  Penal  Code  was  pub- 
lished by  C.  von  Koppmann  4  (3d  ed.,  1903).  A  small  anno- 
tated edition  of  the  same  code  was  edited  by  Dr.  Herz,5  presi- 
dent of  the  imperial  military  court,  assisted  by  Dr.  Georg 
Ernst,  privy  councillor.  An  extensive  work  on  the  criminal 
law  for  the  army  and  navy  was  published  by  Eisner  von 
Gronow6  and  Sohl  in  1906.  A  systematic  work  dealing  with 
the  Military  Penal  Code,  especially  as  it  affects  officers  of  the 
German  navy,  is  that  by  Dr.   Rudolf   Eichheim,7  published 

'  Krause,  Johannes.  Haftentschadigung.  Kommentar.  Hannover. 
Helwingsche  verlagsbuchhandlung,  1906.    224  p. 

3  Kahler,  Otto.     Die  ciitsehadigung  fur  strafe   und  untersuchungshaft. 

Halle  a.  I).,  Buchhaadlung  des  Waisenhauses,  1904.     93  p. 
*  Military  penal  code    Militar  Strafgesetzbuch  1  for  the  German  Empire. 
Translated  by  Maj.  W.  Winthrop.     Washington,  1S73.     54  p. 

4  Koppmann.    C.    von       Kommentar    zum    Militarstrafgesetzbuch.     3d 

ed.     By  G.  Weigel.     Munchen,  C.  H.  Hick.  1903.     612  p. 

1  Herz,  Paul  &  Ernst,  Georg.     Milit.tr  strafgesetzbuch  fur  das  Deutsche 
Reich.     2d  ed.     Berlin.  F.  Vahlen,  1908.     400  p. 
Eisner  v.  Gronow,  K.  &  Sohl,  G.     Militarstrafrecht  fur  heer  u.  marine. 
Berlin,  II.  W.  Miiller,  1906.      1120  p. 

7  Eichheim,  Rudolf.  Handbuch  des  materiellen  strafrechts.  Unter 
besanderer  berucksichtigung  der  verhaltnisse  bei  der  kaiserlichen 
marine  mit  unterstiitzung  des  Reichsmarineamts,  hrsg.  von  I  >r 
Rudolf  Eichheim.     Berlin.  C.  Hermann's  verlag,  kjo4.    468  p. 


164  GUIDE   TO   THE    LAW   OF  GERMANY 

under  the  auspices  of  the  German  navy  department.  It  is 
annotated  with  the  decisions  of  the  imperial  military  court 
and  prints  the  more  important  maritime  laws  in  an  appendix. 
The  recent  literature  on  military  criminal  law  is  discussed 
in  short  reviews  by  Dr.  E.  Steidle  of  Munich  in  the  Zeitschrijt 
fur  die  gesamte  strafrechtswissenschaft,  volume  31  (191 1), 
Heft  7,  pages  766-771. 

The  Military  Code  of  Criminal  Procedure  of  December  1, 
1898,  is  the  subject  of  an  extended  commentary  by  Dr.  C.  von 
Koppmann.1  Herz  and  Ernst,2  the  writers  just  mentioned, 
also  published  an  annotated  edition  of  this  code  (4th  ed., 
1907).  The  decisions  of  the  imperial  military  court  are  now 
being  regularly  reported  in  a  series  known  as  the  Entschei- 
dungen  des  reichsmilitdrgerichts.3  Fifteen  volumes  have  al- 
ready appeared. 

REFORM  OF  CRIMINAL  LAW  AND  PROCEDURE 

The  reform  movement  in  criminal  law  and  procedure  has 
been  the  focus  of  interest  in  legal  circles  in  Germany  for  some 
years.  As  the  result  of  it  a  new  criminal  code  has  been 
drafted  and  extensive  reforms  in  criminal  procedure  are  about 
to  be  undertaken.  For  an  understanding  of  the  difference 
between  the  three  schools  of  criminal  law  reform  now  active 
in  Germany,  attention  is  called  to  an  article  by  Prof.  Liep- 
mann,  of  Kiel,  in  the  Zeitschrijt  jiir  die  gesamte  strajrechts- 
wissenscliajl,  volume  28  (1908),  pages  1— 21,  entitled  Straj- 
rcchtsreform  und  schulenstreit.     The  first  of  the  schools  is  the 

1  Koppmann,   C.   v.      Kommentar    zur   Militarstral'gerichtsordming   von 

Dec.  1,  1898.     Miinchen,  C.  H.  Beck,  igoo.     480  p. 

2  Herz,     Paul     and     Ernst,     Georg.       Militarstrafgerichtsordnung.      4th 

ed.     Berlin,  F.  Vahlen,  1907.     562  p. 

3  Entscheidungen   des  reichsmilitargerichts.      Hrsg.    von    den    Senats- 

prasidenten  und  dem  Obermilitaranwalt  unter  mitwirkung  der 
juristischcn  mitglieder  der  senate.  Berlin,  F.  Vahlen,  1902-1911. 
15  v  and  cont. 


REFORM    OF    CRIMINAL    LAW  1 65 

classical  school,  represented  by  Prof.  Birkmeyer,  which  seeks 
to  hold  fast  to  the  older  retributive  theories  of  punishing  a 
crime  as  an  objective  offense,  with  a  definite  sentence.  The 
second  is  the  sociological  subjective  or  protection  school,  rep- 
resented by  Prof.  Liszt,  which  advances  the  theory  of  the 
punishment  of  the  criminal  rather  than  of  the  specific  crime, 
taking  into  account  his  physical  and  social  antecedents  and 
environment  and  congenital  predisposition.  This  school  em- 
phasizes the  subjective  psycho-physical  elements  in  crime  and 
in  the  criminal.  The  third  school  is  that  of  Merkel,  which 
holds  a  middle  ground  between  the  first  two.  A  brief 
account  of  the  difference  between  the  classical  (Birkmeyer) 
school  and  the  sociological  (von  Liszt)  school,  was  published 
by  Ernst  Bruncken  in  the  Albany  Law  Journal,  volume  68 
(1906),  page  111. 

Liszt  stands  in  the  front  rank  of  modern  criminologists. 
An  appreciation  of  his  work  and  influence  was  written  on  the 
occasion  of  his  sixtieth  birthday  by  Dr.  N.  H.  Kriegsmann,  of 
Kiel,  and  published  in  the  Jwristisches  liter aturblatt,  July  1. 
191 1,  volume  23,  pages  1 21-124.  The  article  also  describes 
at  some  length  the  contents  of  the  two  jubilee  volumes  (Fest- 
fchriften)  dedicated  to  Prof.  Liszt  in  honor  of  his  birthday. 
A  biography  of  Liszt  also  appeared  as  an  editorial  comment 
in  the  Journal  of  criminal  law  and  criminology,  volume  2, 
No.  2  (July,   191  1),  pages  168-170. 

"The  reform  of  criminal  law  in  Germany"  is  the  title 
of  an  article  bj  Dr.  Adolf  llartmann  of  Berlin  which  appeared 
in  the  Journal  of  criminal  law  and  criminology,  volume  2,  No. 
3  (September,  1911),  pages  349-355.  The  author  deals  with 
some  of  the  reforms  contained  in  the  new  draft  codes  and  dis 
cusses  the  difficulties  to  be  overcome  before  their  enactment 
into  law.  He  discusses  the  prevailing  theory  of  German 
criminal  law,  which  is  based  on  discipline  and  relentless  retri- 
bution and  inquisitory  methods  of  trial. 


166  GUIDE   TO   THE    LAW   OF   GERMANY 

Undoubtedly  the  most  important  work  in  connection  with 
the  reform  of  criminal  law,  is  a  sixteen  volume  collection  of 
scientific  contributions  on  the  subject  in  which  practically 
every  leading  authority  in  Germany  is  represented.  These  six- 
teen volumes,  one  of  which  is  an  index,  were  edited  under  the 
auspices  of  the  Department  of  Justice,  and  to  a  large  extent 
constituted  the  basis  for  the  work  of  the  legislative  commission 
having  charge  of  the  drafting  of  the  new  code.  It  is  a  striking 
example  of  the  scientific  way  in  which  Germans  proceed  to 
enact  new  legislation  of  importance.  The  work  bears  the 
title  Vergleichende  darstcllung  des  deutschen  und  auslandischen 
strajrcchts,1  and  as  its  title  indicates,  foreign  criminal  law  is 
drawn  upon  for  purposes  of  comparison. 

The  preliminary  draft  of  the  new  Penal  Code  2  was  published 
on  the  order  of  the  Department  of  Justice  in  1909.  The  draft 
includes  the  "motives"  and  represents  the  final  work  of  the  pre- 
liminary commission  which  sat  from  April  4  to  May  18  in  seven- 
teen sessions.  They  took  account  of  the  counter  draft  (Gegen- 
entwwrf)3  which  was  submitted  by  four  of  the  leading  authori- 
ties in  Germany — Kahl,  Lilienthal,  Liszt  and  Goldschmidt, 
two  of  whom  are  classicists  and  two,  progressives.  A  brief 
report  of  the  sessions  of  the  code  commission  is  to  be  found  in 
the  Deutsche  juristen-zeitung,  June  1,  191 1,  columns  721-725. 
The  most  noteworthy  suggestions  and  criticisms  contained 
in  the  counterproject  mentioned  are  concisely  stated  by  Dr. 

1  Germany.     Vergleichende   darstellung   des   dcutschen   und    auslandi- 

schen  strafrechts.  Yorarbeiten  zur  dcutschen  strafrechtsrefonn. 
Hrsg.  auf  anrcgung  des  Reichsjustizamtes  von  den  professoren  dr. 
Karl  Birkmcyer,  dr.  Fritz  van  Calker,  dr.  Rcinhard  Frank,  dr. 
Robert  v.  Hippel,  dr.  Wilhelm  Kahl,  dr.  Karl  v.  Lilienthal, 
dr.  Franz  v.  Liszt,  dr.  Adolf  Wach.  Berlin.  O.  Liebmann,  1905- 
1909.     16  v. 

2  Vorentwurf  zu  einera  deutschen  strafgesetzbueh .  nebst  begriindung. 

Berlin,  Guttentag,  1909.     66,  869  p. 

3  Gegcnentwurf  zum  vorentwurf  eines  deutschen  strafgesetzbuch.es.  v. 

Kahl,  Lilienthal.  Liszt  and  Goldschmidt.  Berlin,  Guttentag,  1911. 
2  v. 


REFORM    OF    CRIMINAL    LAW  1 67 

Aschrott  in  volume  24,  No.  1  (Jan.  1  =,.  1912)  of  the  Juristisches 

literaturblatt,  pages  1-2.  A  collection  of  critical  discussions 
of  the  new  draft  code  was  published  by  Profs.  Aschrott1  and 
Liszt  in  two  volumes  (Berlin,  1910).  The  leading  criminolo- 
gists and  jurists  of  Germany  are  contributors  to  the  work. 
The  new  drafts  of  penal  codes  in  Austria  and  .Switzerland  are 
drawn  upon  for  purposes  of  comparison.  The  recent  works 
on  criminal  law,  especially  those  relating  to  criticisms  of  the 
project  (Vorentwurf)  of  the  new  Criminal  Code  are  discussed 
by  Dr.  Kriegsmann  of  Kiel  in  volume  31  (191 1),  Heft  7,  pages 
691-737,  of  the  Z<  itschrifi  fur  die  gesamte  strafrechiswissen- 
fchaft.  Profs.  Birkmeyer  and  Xagler  are  the  editors  of  a  series 
of  monographs  2  on  the  reform  of  criminal  law,  some  of  the 
contributions  to  which,  especially  those  of  Birkmeyer  and 
Xagler,  are  important.  Prof.  Birkmeyer's  theories  are 
further  ably  presented  in  three  recent  volumes  '  in  which  he 
criticizes  the  new  draft  code.  He  objects  to  its  attitude  of 
compromise,  in  that  while  it  follows  his  classical  theories 
generally,  it  has  made  some  concessions  to  the  new  pro- 
gressive theories  of  Liszt.  The  volumes  present  valuable 
discussions  of  the  principles  underlying  the  new  preliminary 
draft.  Birkmeyer's  criticisms  of  Liszt's  sociological  theories 
arc  perhaps  best  brought  out  in  a  small  work  published  in 
1906  entitled  I!'<;\  /n^l  von  /.;>:/  vom  Hrafrecht  iibrigl  * 

The  reform  movement,  especially  its  sociological  tenden- 
cies, has  produced  a  large  and  valuable  literature.  Prof. 
Aschaffenburg,  of    EColn,   in    the   Zeitschrijt  fur  die  gesamte 

■Aschrott  u.   Liszt.     Die  reform  des   reichsstrafgesetzbuches.     Berlin, 

C.uttcntag,  1910.     2  v. 
-'  Hirkmeyer  u.  Naglcr.     Kritischc  beitrage  zur  strafrcchtsrefurm.     Hrsg. 

v.  Birkmeyer  u.  Nagler.     Leipzig,  W.  Engelmann,  1908-1911.     14 

vols,  to  I .j  1  I. 
Birkmeyer,  K.  Beitrage  zur  kritik  des  vorentwurfs  zu  1  inem  deutschen 

strafgesetzbuches.     Leipzig,  Engelmann,  1910.     3  v. 
1  Birkmeyer,  K.     Was  lasst  von  Liszt  vom  strafrecht  tiling?     Munchen, 

C.  H.  Heck,  1906.     102  p. 


1 68        GUIDE  TO  THE  LAW  OF  GERMANY 

strajrechtswissenschajt  (vol.  31,  heft  7,  pp.  749-758),  makes 
a  critical  study  of  the  recent  literature  dealing  with  the 
psychology  of  the  criminal  and  medical  jurisprudence.  The 
recent  literature  on  penology  in  relation  to  prisons  and 
prison  systems  is  discussed  by  Dr.  W.  Leonhard  in  the  same 
number,  pages  758-766. 

Prof,  von  Bar '  of  Gottingen  is  the  author  of  an  excellent 
work  in  three  volumes,  written  from  the  point  of  view  of  the 
classical  school  of  criminologists.  The  theories  of  all  the 
schools  are  discussed  under  appropriate  subject  divisions  of 
the  criminal  law.  A  valuable  work  of  Hans  Gross  2  on  criminal 
psychology  has  recently  been  translated  into  English  in  the 
Modern  criminal  science  series.  While  Prof.  Gross  is  an 
Austrian,  his  work  deserves  mention  at  this  point,  because 
of  his  great  influence  throughout  Germany.  The  Modern 
criminal  science  scries  is  being  translated  and  published  under 
the  auspices  of  the  American  Institute  of  Criminal  Law  and 
Criminology.  Three  of  the  nine  volumes  which  it  purposes 
to  publish  have  already  appeared.  Their  importance  as  con- 
tributions to  the  scientific  study  of  a  subject  in  which  America 
lags  far  behind  Europe  cannot  be  over-estimated.  The  com- 
mittee on  translations  consists  of  the  following  gentlemen: 
Profs.  John  H.  Wigmore,  Ernst  Freund,  Maurice  Parmelee, 
Roscoe  Pound,  Robert  B.  Scott  and  AY.  W.  Smithers,  Esq. 
Another  German  work  which  is  to  be  translated  as  a  part  of 
this  series  is  the  well-known  book  of  Prof.  Aschaffenburg,3  of 
Koln,  Das  verbrechen  und  seine  bekdmpjung.  Under  the  title 
Crime  and  its  repression  this  volume  is  now  being  translated 

1  Bar,  Ludwig  von.     Gesetz  und  schuld  im  strafrecht.     Fragen  desgelten- 

den  deutschen  strafrechts  und  seiner  reform.     Berlin.  J.  Guttentag, 

1906-1909.     3  v. 
-'Gross,    Hans.  Criminal  psychology.      Translated  by  Horace  II.  Kallen. 

Boston.  Little.  Brown,  1911.     513  p. 
3  Aschaffenburg,  G.     Das    verbrechen    u.  seine   bekampfiuig.     2d    ed. 

Heidelberg.  C.  Winter.  1906.     277  p. 


REFORM    OF    CRIMINAL    LAW  1 69 

by  A.  Albrechl.1  Prof.  Hans  Gross2  is  also  the  author  of 
a  work  Hamikiuh  jur  untersuchungsrichter,  which  has  been 
translated  into  eight  foreign  languages.  It  is  a  practical 
handbook  for  magistrates,  police  officers,  and  lawyers.  Under 
the  title  Criminal  investigation  it  lias  been  translated  into 
English  by  J.  Adam,  1907. 

A  number  of  other  critical  studies,  psychological,  philo- 
sophical and  criminological,  all  bearing  on  the  theory  of  crime 
and  the  criminal,  merit  special  attention.  These  are  first:  the 
psychological  study  of  motive  in  criminal  law  and  the  theory 
of  punishment  by  Prof.  Friedrich  s  of  Giessen;  a  philosophical 
study  by  Dr.  Fritz  Berolzheimer,J  in  the  fifth  volume  of  his 
System  der  rechts-  und  wirischajtsphilosophie;  the  critical 
studies  of  the  theory  of  guilt  and  punishment  by  Profs.  Mittcr- 
maier  5  and  Beling;"  and  the  psychological  studies  of  Wulffen  ' 
and  Sommer.8 

The  reform  of  criminal  procedure  has  likewise  been  the 
occasion  for  the  publication  of  a  great  number  of  tracts  and 
of  some  valuable  larger  works.     A  commission  was  appointed 


1  Aschaffenburg,    ('■.     Crime    and   its    repression.     Translated    by    A. 

Albrecht.      Boston.  Little,  Brown.  1912. 
2 Gross,    Hans.     Criminal    investigation.     Translated    by  J.   Adam    and 

J.  C.  Adam.     New  York,  Lawyers  Cooperative  Pub.  Co.,  1907.     Bos- 
ton, Little,  Brown,  1906.     889  p. 
friedrich,  Julius.     Die  bestrafung   der   motive    und  die    motive  der 

bestrafung    rechtsphilosophische  und  kriminalpsychologische  stud- 

ien.     Berlin  und  Leipzig,  W.  Rothschild,  1910.     312  p. 
1  Berolzheimer,  Fritz.     Strafrechtsphilosophie  mid  strafrechtsreform 

in  vol.   ■•,  of  his  System  der  rechts  u.  wirtschaftsphilosophie      Mini 

chen,  1907. 
1  Mittermaier,  Wolfgang.     Kritische   beitrage   zur   lehre  von    der  straf 

rechtsschuld.     Giessen,  Tdpelmonn,  190c).     56  p. 
'  Beling,  Ernst.     I'nsehuld,  selnild  n.  schuldstufen   im   vorentwurf  zu 

einemdeutschen  straf gesetzbuche.    Leipzig,  Engelmann,  1910.    01  p 
'Wulffen,     Psychologie   des  verbiechers.    Gross-   Lichterfelde-Ost,  P. 

I.angenseheidt,  1908.     2  v. 
"Sommer,  Robert.     Kriminalpsychologie.     Leipzig,  J.  A.  H.irtli,    1904. 

388  ],. 


170        GUIDE  TO  THE  LAW  OF  GERMANY 

in  1902  by  the  Department  of  Justice  to  make  recommenda- 
tions for  the  reform  of  criminal  procedure.  Its  protocols  were 
published  officially  '  in  two  volumes  (Berlin,  1905).  Two 
monographs  by  one  of  the  leaders  in  the  movement  for  the 
reform  of  procedure,  Ur.  Adickes,  -  the  noted  reform  mayor  of 
Frankfurt,  deserve  special  mention.  In  these  two  books  he 
presents  the  basic  principles  of  procedural  reform.  Prof.  Liszt 
has  made  a  small  contribution  to  the  special  subject  of  re- 
form of  criminal  procedure.3  Critical  discussions  of  the  drafts 
submitted  by  the  commission  of  the  Department  of  Justice 
appear  in  a  volume  edited  by  Dr.  P.  F.  Aschrott4  (Berlin, 
1906).  These  discussions  were  contributed  at  the  invitation 
of  the  Internationale  Kriminalistische  Vereinigung.  Critical 
articles  on  the  reform  of  criminal  procedure  were  edited  in 
an  edition  of  three  volumes  by  the  leaders  in  the  movement, 
Adickes,5  Aschrott,  Lilienthal,  and  Liszt.  They  were  pub- 
lished in  Berlin  in  1908.  The  reform  of  procedure  in  jury 
courts  (Schwurgerichte)  is  one  of  the  principal  objects  of  the 
reform    movement.      The   draft   of  an   act   of   September   1, 

1908,  on   criminal   procedure,   and    of  an  act   of  March    26, 

1909,  amending  the  Judiciary  Act,  dealt  especially  with 
jurv  courts.  The  whole  movement  in  its  latest  stage  is 
discussed  in  a  work  by  Prof.  Liepmann"   (Heidelberg,  1910). 

1  Protokolle  der  kommission  fur  die  reform  des  strafprozesscs.  Berlin, 
Guttentag,  1905.     2  v. 

-Adickes.  Zur  verstandigung  uber  die  justizreform.  Berlin.  Guttentag, 
1907.  124]).  Adickes.  Grundlinien  durchgreifender  justizreform. 
Berlin,  J.  Guttentag,  1906.     170  p. 

'Liszt,  Franz  von.  Hie  reform  des  strafverfahrens.  Berlin,  Gutten- 
tag, 1906.     56  p. 

'Aschrott,  P.  F.  Reform  des  strafprozesscs.  Kritische  hesprechungen 
der  von  der  Kommission  des  Reichsjustizamts  gemachten  vorschlage. 
Berlin,  J.  Guttentag,  1906.     1^4+784  p. 

5  Beitragc  zur  reform  des  strafprozesses.  Herausg.  v.  Adickes,  Asch- 
rott, Lilienthal  u.  Liszt.     Berlin,  J.  Guttentag,  190S.     3  v. 

"Liepmann,  M.  Die  reform  des  deutschen  schwurgerichts.  Heidel- 
berg, Winter,  1910.     263  p. 


PUBLIC   LAW  1  7  I 

A  collection  of  critical  monographs  on  the  subject  was 
edited  by  Profs.  Mittermaier  and  Liepmann '  (Heidelberg, 
1906-1909).  Articles  based  on  the  reform  of  procedure  in  the 
lower  courts  of  lay  judges  were  collected  in  a  small  volume 
published  under  the  title  Strafprozess-rejorm  und  laien- 
richter*  (Berlin,  1910).  " 

PUBLIC    LAW 

Public  law  includes  constitutional,  administrative,  inter- 
national, ecclesiastical,  colonial,  and  criminal  law.  Both  civil 
and  criminal  procedure  are  usually  added.  Criminal  law  and 
civil  and  criminal  procedure  have  already  been  discussed. 
International  law,  as  stated  in  the  beginning,  is  excluded 
from  this  survey.  In  the  course  of  this  section  we  shall 
mention  first  the  prominent  works  on  public  law  in  general. 
These  deal  primarily  with  constitutional  and  administrative 
law,  and  must  not  be  overlooked  in  considering  the  important 
literature  on  one  or  the  other  of  these  branches  of  public  law. 
We  shall  then  take  up,  seriatim,  constitutional,  ecclesiastical, 
colonial  and  administrative  law. 

The  principal  work  on  German  public  law  is  unquestionably 
that  of  Prof.  Laband,3  the  learned  jurist  of  Strassburg  14th 
ed.,  1901).  Two  volumes  of  a  new  (fifth)  edition  appeared  in 
191 1.  This  work  in  its  second  edition  was  the  subject  of 
a  careful  review  and  analysis  by  Prof.  John  W.  Burgess 
of  Columbia  University,  in  the  Political  Science  Quarterly, 
volume  3  (1888),  pages  123-135,  in  an  article  entitled 
"Laband's  public  law  of  the  German    Empire."     The  third 

1  Sch wurgerichte  11.  schdffengerichte.     Bcitrage  zu   ihrer  kenxttsiss  u. 

beurteilung.      Hrsg.    v.    Mittermaier   u.    Liepmann.      Heidelberg, 
C.  Winter.  1906-1909.     2  v. 

2  Straf prozessreform    und    Laienrichter.      Berlin-Charlottenburg,    Vita, 

Deutsches  Verlagshaus,  1910.     [34  p. 

3  Laband.    Paul.      Das  staatsrecht  des   Deutschen    Reiches.      |ih    ed. 

Tubingen  und  Leipzig,  J.  C.  B.  Mohr,  1901.     4  v.     5U1  ed.  1911-12. 


172        GUIDE  TO  THE  LAW  OF  GERMANY 

edition  of  the  work  was  translated  into  French.1  A  valu- 
able reference  work  on  all  questions  of  public  law  and 
economics  is  the  well-known  " Handivorterbuch"  in  eight 
volumes,  edited  by  Conrad,  Elster,2  and  others.  Its  third 
edition  has  recently  been  completed.  An  important  treatise 
on  German  public  law  is  that  by  the  late  Prof.  Georg  Meyer  3 
of  Heidelberg,  edited  in  its  sixth  edition,  1905,  by  Prof.  Georg 
Anschiitz.  A  convenient  two  volume  treatise  was  written  by 
Prof.  Phillip  Zorn,4  of  Konigsberg.  Another  popular  work  on 
German  constitutional  and  administrative  law,  analytical  in 
its  treatment,  is  from  the  pen  of  Prof.  Arndt,5  of  Konigsberg 
(Berlin,  1901). 

A  valuable  work,  the  usefulness  of  which  is  attested  by  its 
many  editions,  is  the  Handbnch,  in  this  case  what  we  might 
call  a  handbook,  of  Baron  Hue  de  Grais,6  privy  councillor.  In 
a  compact  volume,  it  presents  a  synopsis,  with  annotations, 
of  all  the  administrative  laws  of  importance,  such  as  those  re- 
lating to  the  army  and  navy,  finance,  police,  administration 
of  justice,  procedure,  education,  the  church,  industry,  mining, 
commerce  and  transportation.  The  twenty-first  edition,  191 1 , 
is  the  last;  new  editions  appear  almost  every  year.  A  work 
dealing  with  the  constitutional  and  administrative  features  of 
the  economic  and  social  legislation  of  the  end  of  the  nineteenth 

1  Laband,    Paul.      Le    droit    public    de    l'Empire    allemand.      Edition 

francaise.     Paris,  1900-1904.     6  v. 
-  Handworterbuch    der   staatswissenschafteu,   lirsg.   v.    Conrad,    Elster, 

Lexis,  Loening.     3d  ed.     Jena,  G.  Fischer,  190S-11.     8  v. 
'Meyer,  G.     Lehrbuch   des   deutschen   staatsrcchtes.     6th   ed.,  by   G. 

Anschiitz.     Leipzig,  Duncker  &  Humblot,  1905.     893  p. 

4  Zorn,  Phillip  Karl  Ludwig.     Das  staatsrecht  des  Deutschen  Reiches. 

2d  ed.     Berlin,  J.  Guttentag,  1895-97.     -  v- 

5  Arndt,  Adolf.     Das  staatsrecht  des  Deutschen   Reiches.     Berlin,  O. 

Haring,  1901.     972  p. 

6  Hue  de  Grais,  Robert.     Handbuch  der  verfassung  und  verwaltung  in 

Preussen  und  dem  Deutschen  Reiche.     2isted.     Berlin,  J.  Springer, 
1911.     676  p. 


PUBLIC   LAW  173 

century  is  that  by  Judge  Paul  Altmann,1  in  two  volumes,  of 
which  the  second  deals  with  Prussia  alone.  Nor  should  we, 
in  speaking  of  leaders  in  public  law,  omit  the  name  of  the  late 
Prof.  Jellinek,  all  of  whose  works  are  in  high  repute.  His 
System  der  subjectiven  offentlichen  rechte*  is  justly  entitled  to 
a  prominent  place  in  the  literature  of  German  public  law. 
An  account  of  Prof.  Jellinek's  life  and  literary  activities  ap- 
pears in  the  Juristisches  literaiurblatt,  volume  23  (Feb.  15, 
191 1),  pages  25-27.  Robert  von  Mold  and  Rudolph  Gneist, 
though  both  long  deceased,  are  still  considered  leading 
authorities.  Mold's  works  on  public  law  are  still  used  as 
quarries  of  information  by  publicists  of  the  present  day. 
Two  of  his  larger  works,  especially  the  one  dealing  with  the 
history  and  literature  of  public  law,  deserve  attention  at  this 
point.3  Gneist 's  Rechtsstaat*  still  engages  the  attention  of 
every  student  of  political  science.  On  his  work  and  influence, 
see  the  article  on  "Four  German  jurists"  by  Prof.  Munroe 
Smith  1  rupra,  p.  35). 

In  a  collection  appearing  under  the  name  Das  offentliche 
rechtdei  gegt  mvart  (Tubingen,  Mohr),  under  the  general  editor- 
ship of  Profs.  Jellinek,  Laband,  and  Piloty,  leading  publicists 
treat  of  the  public  law  of  the  important  States  of  the  world, 
one  country  per  volume.  The  series  is  intended  to  take  the 
place  of  the  now  somewhat  antiquated  collection  edited 
by  Marquardsen,  Handbuch  des  offentlichen  rechts.  The  cur- 
rent   movement    in    public    law  is    presented    in    an  annual 


'  Altmann.  Paul.     Die  verfassung  und  verwaltungim  Deutsche!)  Reiche 

und   Preussen;   handbuch  des  Sffentlichen  rechts  der  gegenwart. 

Berlin,  C    Hermann,  ic)o;-S.     2  v. 
-'  Jellinek,  ('..     System  der  subjektiven  6ffentlichen   rechte.     2d  ed. 

Tubingen,  Mohr,  1905.     366  p 
M.ihl,  Robt.  v..n.  Geschichte  u.   literatur    der  staatswissenschaften. 

Erlangen,  Enke,  1855.    3  v.     Mohl,  Robt    von.  Staatsrecht,  vfilker 

recht  u.  jjoliiik.    Tubingen,  Laupp,  i860.    3  \. 
'Gneist,  R.     Der  rechtsstaat  u.  verwaltungsgerichte    in   Deutschland. 

2d  edition.     Berlin,  Springer,  1879.     360  p. 


174        GUIDE  TO  THE  LAW  OF  GERMANY 

volume,  the  first  of  which  appeared  in  1907  (likewise  edited  by 
Profs.  Jellinek,  Eaband,  and  Piloty),  under  the  title  Jahrbuch 
des  offentlichen  rechts  (Tubingen,  Mohr).  In  a  collection 
begun  in  1908  entitled  Bibliothek  des  ofjentlichen  rechts  (Han- 
nover, Janecke),  under  the  general  editorship  of  Scholz  and 
Storck,  small  treatises  are  published  dealing  in  popular  form 
with  the  public  law  of  the  principal  world  states  as  well  as  the 
individual  States  of  the  German  Empire.  An  excellent  col- 
lection of  20  monographs,  in  two  volumes,  dealing  with  a 
variety  of  questions  in  the  field  of  political  science  and  public 
law,  was  dedicated  as  a  Festgabe  (jubilee  volume)  to  Prof. 
Laband  on  the  fiftieth  anniversary  of  his  doctorate.  They 
appear  under  the  title  Staatsrechtliche  abhandlungcn.1  A 
number  of  serials,  somewhat  on  the  order  of  the  Columbia  and 
Johns  Hopkins  studies  in  public  law,  are  published  at  various 
German  universities,  but  on  the  whole  are  not  of  sufficient 
importance  to  warrant  specific  mention  in  this  survey. 

CONSTITUTIONAL   LAW 

A  useful  bibliography  of  German  constitutional  law  appears 
at  pages  1 29-1 31  of  Prof.  George  Elliott  Howard's  syllabus 
on  Comparative  federal  institutions  (Lincoln,  Nebr.,  1907). 
A  good  work  on  the  constitutional  law  of  the  German  Empire 
is  that  by  Prof.  Burt  Estes  Howard  -  entitled  The  German 
Empire.  German  constitutional  law  is  also  treated  in  Prof. 
Burgess'  3  well-known  Political  science  and  comparative  consti- 
tutional law.  An  instructive  article  on  the  constitutional 
agencies  of  governmental  administration  in  the  German  Em- 
pire and  its  various  states  as  compared  with  the  system  pre- 

1  Staatsrechtliche   abhandlungen,  festgabe  fur  Paul  Laband  zum  fiinf- 

zigsten  iahrestage  der  doktor-promotion.     Tubingen,  J.  C.  B.  Mohr 

(P.  Siebeek),  1908.     2  v. 
-Howard,  Burt  Estes.     The  German  Empire.     New  York,  Macmillan, 

1906. 
3  Burgess,    Political     science     and     comparative     constitutional     law 

Boston,  1890-Qi.     2  v.     2d  cd.     v.  1,  Boston,  1902. 


CONSTITUTIONAL   LAW  I  75 

vailing  in  this  country,  was  recently  published  by  Prof.  Otto 
Gierke  under  the  title  "German  constitutional  law  in  its  rela- 
tion to  the  American  constitution  "  (Harvard  Law  Review,  vol. 
23,  Feb.  1910,  pp.  273-90).  A  leading  work  on  German  consti- 
tutional law  is  Prof.  Laband's  *  Deutsche}  reichsstaatsrecht,  the 
fifth  edition  of  which  appeared  in  1909.  A  work  of  importance 
is  that  of  Prof.  Haenel,2  Deutsckes  staatsreckt,  only  the 
first  volume  of  which,  on  constitutional  law,  has  been  pub- 
lished. It  appears  in  the  Binding  series.  Prof.  Arndt,:i  of 
Kiinigsberg,  is  the  author  of  a  useful  little  work,  the  fourth 
edition  of  which  has  recently  appeared.  Bomhak's  *  Grund- 
riss  is  another  popular  book.  The  sources  of  German  con- 
stitutional law  are  treated  in  the  first  volume  of  the  Quellen- 
tammlung  :n»i  ftaats-  verwaltungs-  und  vdlkerrechi  by  Profs. 
Triepel 5  and  Zeumer.  Some  of  the  writers  on  constitutional 
law,  whose  principal  work  was  accomplished  in  the  middle 
of  the  nineteenth  century,  also  deserve  attention.  Prominent 
among  them  are  Gneist,  Mohl,"  Zachariae,7  and  Zoepfl." 

1  Laband,    Paul.      Deutsches    reichsstaatsrecht.      5th    ed.      Tubingen, 

J.  C.  B.  Mohr  (P.  Siebeck),  1009.     448  p. 

2  Haenel,  Albert.     Deutsches  staatsrecht.     Leipzig,   Duncker  &  Hum- 

blot,  1892.     1  v. 

3  Arndt,  Adolf.    Verfassung  des  Deutschen  Reiches.    4th  ed.     Berlin.  J. 

Guttentag,  1911.    438  p. 
1  Bornhak,    Konrad.     Grundriss   des   deutschen    staatsrechts.     2d    ed. 

Leipzig,  Deichert,  1910.     263  p. 
5  Triepel,    Heinrich.     Quellensammlung   zum   deutschen   reichsstaats 

recht.    Zusammengestellt  ■von  Dr.  Heinrich  Triepel  .   .  .     Leipzig, 

C.  L.  Hirschfeld.  1901.    ,54;  p. 
Mohl,     Robert     von.        Das   dcutschc    reichsstaatsrecht.        Kechtlichc 

und    politische   erdrterungen    von    Robert    von    Mohl,    Tubingen, 

H.  Laupp,  1873.    408  p. 
'  Zachariae,  Heinrich  Albert.     Deutsches  staats    und  bundesrechl       ;d 

ed.    Gottingen,  Vandenhoeck  und  Ruprecht,  1865-1867.    2  v. 
/  lepfl,    lhinrich    Matthias.     Grundsatze   des    gemeinen    deutschen 

staatsrechts,  mit  besonderer  rucksiehl  auf  das  allgemeine  staatsret  In 

und  auf  die  neuesten  zeitverh&ltnisse.     5th  ed.     Leipzig  und  Heidel 

berg,  C.  P.  Winter 'sche  verlagshandlung,  1863.    2  v. 


176        GUIDE  TO  THE  LAW  OF  GERMANY 

The  general  theory  of  the  state  (Allgemeine  Staaislehre)  has 
been  the  subject  of  a  number  of  scholarly  treatises.  One  of 
the  most  prominent  is  Jellinek's  work,1  part  I  of  his  Recht 
des  modernen  staate.t.  This  book  has  recently  been  translated 
into  French  (Paris,  Giard  &  Briere,  191 1).  The  classic  of 
Prof.  Bluntschli 2  naturally  occupies  a  prominent  place 
(6th  ed.,  1886).     This  work  has  been  translated  into  English.3 

The  law  concerning  the  acquirement  and  loss  of  citizenship, 
was  enacted  on  June  1,  1870.  Besides  its  treatment  in  the 
more  general  works,  it  finds  special  treatment  in  the  book  of 
Dr.  Wilhelm  Cahn,4  in  which  the  law  is  fully  annotated.  The 
third  edition  appeared  in  1908.  In  the  same  year  Dr.  Cahn  5 
wrote  an  interesting  monograph  on  the  reform  of  the  nation- 
ality laws  of  Germany.  A  small  work  dealing  particularly 
with  the  national  military  duties  involved  in  German  citi- 
zenship, as  they  affect  emigrants  to  the  United  States,  was 
published  by  P.  W.  S.  Tingle0  (Philadelphia,  1903). 

ECCLESIASTICAL    LAW 

Canon  law  was  accepted  in  Germany  at  the  same  time  as 
Roman  law.  While  many  of  its  elements  are  to  this  day 
clearly  traceable  sources  of  modern  German  law,  its  applica- 
tion, on  the  whole,  is  of  relatively  slight  importance  in  any 
legal  relations  except  those  of  the  church  and  its  functions. 

1  Jellinek,  Georg.    Allgemeine   staatslehre.    2d  ed.    Berlin,  O.  Haring, 

i9°5-     797  P- 
-  Bluntschli,   J.   C.     Allgemeine    staatslehre.     6th  ed.,  by  E.  Loening. 

Stuttgart,  Cotta,  1886.    2  v. 

;  Bluntschli,  J.  C.  The  theory  of  the  state.  3d  ed.  Oxford,  Clarendon 
Press,  1898.     550  p. 

4  Cahn,  Wilhelm.  Das  reichsgesetz  fiber  die  erwerbung  und  den 
verlust  der  reichs  und  staats-angehorigkeit ,  vora  1.  juni  1870, 
erlautert.     3d  ed.    Berlin,  J.  Guttentag,  1908.    582  p. 

3  Cahn,  Wilhelm.  Zur  reform  des  reichs-  und  staats-angehorigkeits- 
gesetzes.    Berlin,  J.  Guttentag,  1908.    39  p. 

6  Tingle,  E.  M.  S.  Germany's  claims  on  German-Americans  in  Ger- 
many.    Philadelphia,  1903- 


COLONIAL   LAW  I  77 

The  history  of  German  canon  law  is  treated  in  two  volumes 
by  Prof.  Edgar  Loening,1  of  Dorpat.  They  appeared  in  1878. 
Prof.  Rudolph  Sohm,2  of  Leipzig,  published  the  first  volume 
of  a  treatise  on  canon  law  in  1895,  as  a  part  of  the  Binding 
series.  This  work  of  Sohm's  has  received  careful  treatment 
in  English  in  a  book  by  Walter  Lowrie.3  Prof.  Emil  Fried- 
berg/  an  authority  on  the  subject,  published  the  sixth  edition 
of  his  well-known  treatise  in  1909.  The  late  Prof.  Paul 
Hinschius,5  of  Berlin,  published  his  extensive  work  between 
1869  and  1897.  His  death  cut  short  the  completion  of  the 
work,  which  ended  with  the  fust  part  of  volume  6.  An  excel- 
lent history  of  the  sources  and  literature  of  canon  law  covering 
the  period  from  Gratian  to  the  present  day,  was  published  by 
Prof.  Johann  von  Schulte,"  of  Bonn.  The  work  consists  of 
three  volumes  in  four,  published  in  Stuttgart,  1875-1880. 
Two  useful  treatises  on  canon  law  are  those  by  Hergenrother,7 
and  by  Heiner.8 

COLONIAL   LAW 

A  collection  of  the  imperial  laws  relating  to  the  German 
protectorates  and  colonies  is  published   under  the  title  Die 

1  Loening,  Edgar.     Gcschichte  des  deutsehen  kirchenrechts.     Strassburg 

and  Tubingen,  1878.     2  v. 

2  Sohm,  Rudolf.     kirchenrecht.      I^eipzig,  Dunckcr  &  Humblot,  1892. 

v.  1. 

3  Lowrie,   Walter.     The   church   and   its  organization   in   primitive  and 

Catholic  times;   an   interpretation  of  Rudolph  Sohm's  Kirch 
v.  1.     New  York,  London,  Longmans,  1004. 
1  Friedbcrg,    Emil.     Lehrbuch   des   katholischen   u.    protestantischen 
kirchenrechts.    6th  ed.    Leipzig,  Tauchnitz,  1909.     656  p. 

6  Hinschius,  Paul.     Das  kirchenrecht  der  katholischen  u.  protest. mteii  in 

Deutschland.     Berlin,  Guttentag,  1869-1X117  (incomplete),    v.  I-VI. 
"Schulte,  John    Fr.  von.       I  lie  geschichte  der  quellcn    u.    liter.dur  des 
eanonisehen  rechts.     Stuttgart,  1875-80.     3  v.  in  4. 

7  Hergenrother,  P.     Lehrbuch  des  katholischen  kirchenrechts.     aded., 

by  Hollweck.    Freiburg,  Herder,  1905.    040  p. 

8  Heiner,  Frz.     Katholisches  kirchenrecht.     v.  I,  5th  ed.    Paderbom, 

Selioningh,  1900.     419  p. 

29774°     12 12 


178        GUIDE  TO  THE  LAW  OF  GERMANY 

deutsche  kolonialgesetzgebung,1  edited  by  Kobner  and  Gerst- 
meyer.  Ministerial  decrees,  ordinances  and  international 
agreements  relating  to  the  subject  matter  are  reported  in  full. 
The  thirteenth  volume  was  published  in  1911.  An  able 
little  work  on  the  legal  position  of  the  German  protectorates, 
especially  as  affected  by  the  new  Civil  Code,  is  that  by 
Dr.  Karl  von  Stengel,2  the  noted  authority  on  adminis- 
trative law.  An  introduction  to  German  colonial  law,  by 
Hoffmann,3  has  recentlv  been  published.  Prof.  Gareis,4  under 
the  title  Deutsches  kolonialrecht  has  published  an  interesting 
work  dealing  with  the  law  and  legal  position  of  the  German 
colonies  and  protectorates.  A  periodical  which  devotes  some 
attention  to  colonial  law  is  Beitrdge  zur  kolonial politik ,  founded 
in  1899,  and  issued  since  1905  under  the  title  Zeitschrift  fur 
kolonial  politik,  kolonialrecht  u.  kolonialwirtschajt.  It  is  edited 
by  the  secretary  of  the  Deutsche  Kolonialgesellschaft,  and 
published  at  Berlin  by  Siisserott. 

ADMINISTRATIVE    LAW 

Much  valuable  information  on  German  administrative  law 
is  contained  in  the  excellent  work  of  Prof.  Goodnow,  Compara- 
tive administrative  law  (New  York,  London,  Putnam's,  1893, 
2  vol.).  The  leading  work  on  the  subject  in  Germany  is  gen- 
erally admitted  to  be  Prof.  Otto  Mayer's5  Deutsches  verwaltungs- 
rccht.  General  administrative  law  has  remained  a  most  diver- 
sified system,  despite  the  unification  of  the  Empire  and  the 

1  Die   deutsche   kolonial-gesetzgebung.      Edited   by  Kobner   &   Gerst- 

meyer.    Berlin,  Mittler,  1893  ff.,  13  v.  and  continuation. 

2  Stengel,  Karl  F.  von.    Die  rechtsverhaltnisse    der  deutschen  schutz- 

gebiete.    Tubingen,  Mohr.  1901.    239  p. 

3  Hoffmann,   H.  Edler  v.     Einfuhrung  in  das  deutsche  kolonialrecht. 

Leipzig,  Goschen.  1911.    231  p. 

4  Gareis,  Karl.     Deutsches   kolonialrecht.      2d   ed.     Giessen,  E  Roth, 

1902.    238  p. 

5  Mayer,  Otto.    Deutsches  verwaltungsrecht.    Leipzig,  Duncker&  Hum- 

blot,  1SQ5-96.     2  v. 


ADMINISTRATIVE    LAW  I  79 

codification  of  its  civil  law.  Prof.  Mayer's  work  is  distinguished 
from  all  the  others  on  the  subject  by  the  fact  that  it  is  written 
from  a  legal  point  of  view,  rather  than  from  that  of  adminis- 
trative science  and  economics.  It  is  a  book  for  the  lawyer, 
much  like  Laband's  larger  work  on  public  law.  It  appeared  in 
the  Binding  series.  The  general  part  deals  with  the  historical 
development  of  administrative  law  and  the  general  organiza- 
tion of  public  agencies  of  administration,  their  bases,  procedure, 
and  special  legal  institutions,  such  as  the  responsibility  of  the 
state  for  acts  of  its  officers.  In  a  special  part,  the  author  deals 
with  police  and  finance,  after  which  follows  the  civil  law  divi- 
sion of  things  {Sachenrecht),  certain  kinds  of  obligations,  and 
juristic  persons  in  public  law.  Prof.  Mayer  is  one  of  the  few 
publicists  who  write  equally  well  in  two  languages.  He  pub- 
lished his  work  in  a  four  volume  French  edition  '  in  1 903-1 906. 
Another  notable  work  is  that  by  the  late  Prof.  Georg  Meyer,2 
of  Heidelberg,  written  from  the  standpoint  of  public  adminis- 
tration. It  is  intended  as  a  supplementary  work  to  his  treatise 
on  public  law  {supra,  p.  172).  The  work  contains  the  following 
broad  divisions:  First,  general  doctrines  and  internal  affairs, 
including  public  welfare  measures;  second,  external  adminis- 
trative affairs  or  foreign  relations;  third,  military  matters; 
and  fourth,  finance.  The  third  edition,  edited  by  Dr.  Fran/ 
Dochow,  appeared  in  1910.  A  recent  work  by  Fleiner,3  to 
judge  from  the  book  reviews,  promises  to  be  one  of  the  most 
important  in  the  field.  The  writer  has,  as  yet,  been  unable 
to  obtain  this  book. 

1  Mayer,  Otto.     Le    droit   administratif    allemand.     Ed.  francaise   par 

l'auteur,  avec  une  preface  de  H.   Berthelemy  .  .  .  Paris,  V.  Giard 

X-  E.  Briere,  1903-06.    4  v. 
'Meyer,  Georg.     Lehrbuch  des  deutschen  vervraltungsrechts.    3rd  ed. 

by  Franz  Dochow.     Leipzig,  Duncker  &  Humblot,  1910.     762  p. 
'  Fleiner,     Fritz.      Institutionen     des    deutschen    verwaltungsrechts. 

Tubingen,  Mohr,  191 1.     358  p. 


1  SO        GUIDE  TO  THE  LAW  OF  GERMANY 

A  jurist  closely  identified  with  administrative  law  is  Prof. 
Karl  von  Stengel.1  His  treatise  on  the  subject  is  now  some- 
what antiquated  in  view  of  the  great  progress  in  social  legisla- 
tion and  improvement  of  administrative  detail  which  Germany 
has  witnessed  within  the  last  20  years.  His  OiieUensammlung- 
of  administrative  law  (1902),  volume  3  of  the  collection  edited 
Ijv  Profs.  Triepel  and  Zeumer  (supra,  p.  175)  is  a  valuable 
source  of  information  for  the  more  important  statutes  and 
regulations  of  an  administrative  character.  Perhaps  his  best 
known  work  is  his  Worterbuch  :i  which,  in  two  volumes  and  three 
supplements,  appeared  in  1 890-1 898.  The  celebrated  Diction- 
naire  dr  l' administration  francaise  of  Maurice  Block  was  its 
prototype.  In  the  form  of  an  alphabetical  dictionary,  it  is  a 
valuable  reference  work  on  all  questions  of  administrative 
law.  The  first  volume  of  a  new  edition,  by  Fleischmann, 
now  enlarged  to  include  constitutional  law,  appeared  in 
1910.  Prof,  von  Mohl4  wrote  a  scholarly  work  on  adminis- 
trative law  which,  though  old,  is  still  useful  for  its  theories. 
For  the  same  purpose,  Gneist'swork  is  still  important  (supra, 
note,  p.  173).  Larger  works,  encyclopedias  or  collections  of 
administrative  laws,  dealing  especially  with  Prussia,  have 
been  published  under  the  general  editorship  of  Bittner  (2d  ed., 

2  vol.,  1911),  Illing(9thed.,  4  vol.,  1 905-1908),  and  Brauchitsch 
(21st  ed.,  7  vol.,  191 1-),  and  are  mentioned  here  only  in 
passing. 

A  collection  of  decisions  construing  important  administra- 
tive laws  (except  those  dealing  with  social  insurance)  is  pub- 

1  Stengel.  Karl  Michael  Joseph  Leopold  von.     Lehrbueh  des  deutschen 

verwaltungsreehts.     Stuttgart,  F.  Enke,  1886.     459  p. 

2  Stengel,    Karl.     Quellensammlung   zum   verwaltungsrecht  des   Deut- 

schen Reiehes.     Leipzig,  C.  L.  Hirschfeld,  1902.     558  p. 
1  Stengel,  Karl  F.      Worterbuch  des  deutschen  verwaltungsreehts.     2  v. 

&  3  supplements.     Freiburg,    1890-98.     New    edition,     1910-,    by 

Fleischmann. 
4  Mohl,  Robert  von.      Die   polizei-wissenschaft   nach   den  grundsatzen 

des  rechtsstaates.     3rd  ed.     Tubingen,  1S66.     3  V. 


ADMINISTRATIVE   LAW  l8l 

lished  by  Kamptz1  and  Delias.     It  is  a  kind  of  continuation 
or  supplement  to  the  reports  of  the  Prussian  supreme  admini 
strative  court,  and  is  considered  of  value  in  connection  with 
the  study  of  questions  on  administrative    law.     The   third 
volume  appeared  in  1910. 

Procedure  before  administrative  courts  has  been  the  sub- 
ject of  some  excellent  treatises.  That  by  Dr.  O.  von  Sarwey,' 
although  written  in  1880,  is  still  valuable  for  its  critical  dis- 
cussion of  principles.  A  critical  study  of  administrative  theo- 
ries and  jurisdiction  was  published  by  Prof.  Tezner,'  of  Vienna 
(Berlin,  1901).  A  practical  work,  free  from  theoretical  and 
critical  discussions,  is  that  by  Frilz  Kunze,'  privy  councillor, 
dealing  with  procedure  before  courts  in  all  classes  of  admin- 
istrative matters.  Dr.  Georg  Bartels''  has  also  published  a 
practical  work  on  the  subject  which  contains  a  useful  table  of 
jurisdictions,  administrative  actions,  and  remedies.  A  prop- 
osition is  now  being  advanced,  particularly  by  the  Deutsche 
Juris tentag,  for  the  establishment  of  an  imperial  supreme 
administrative  court.  The  court  for  the  decision  of  juris- 
dictional conflicts  between  the  ordinary  judicial  tribunals  and 
the  administrative  courts  sits  in  Berlin,  and  while  called  on 
only  upon  occasion,   its  decisions  are  of   much   importance 

1  Kamptz  mid    Delius.    Die   rechtsprecliung  des   Reichs    und   Kam- 

mergerichts  auf  den  gebieten  des  ofientlichen  rechts,  unter  berilck 
sichtigung  der  entscheidungen  >l<r  oberlandesgerichte  und  des  ober- 
tribunals;   hrsg.  von   B.  v.    Kamptz  .   .   .  und  Dr.   H.  Delius  .  .  . 
Berlin,  C.  Hey mann 's  verlag,  1906-1910.     ,i  v.  to  1910. 

2  Sarwey,   0     von.     Das  dSentliche    recht  u.   die   verwaltungsrecht 

pflege.    Tubingen,  Laupp,  [880.     700  p. 

3Tezner,  Friedrich.  Die  deutschen  theories  <tir  verwaltungsrechts 
pflege.  Bine  kritisch  orientirende  studie.  Berlin,  C.  Hey  mann, 
1901.    311  p. 

'Kunze,    Fritz.     Das    verwaltungstreitverfahren.      Berlin,     J.     Gul 
tentag,  njo<s,     625  p. 

6  Bartels,  Georg.  Das  verfahren  vor  den  verwaltungsgerichten.  Ber- 
lin, C.  Heymann's  verlag,  1907.     230  p. 


1 82  GUIDE  TO  THE   LAW   OF1  GERMANY 

They  are  collected  in  a  work  by  Dr.  Otto  Stolzel,1  published 
in  1897.  This  court  recently  passed  upon  the  important 
von  Hellfeld  case,  which  raised  the  question  of  the  jurisdic- 
tion of  German  courts  over  a  foreign  State  (Russia)  in  the 
matter  of  a  counterclaim,  in  a  suit  where  that  same  foreign 
State  was  originally  the  plaintiff.  A  translation  of  the  deci- 
sion is  printed  in  the  American  Journal  of  International  Law, 
April,  191 1,  pages  490-519.  On  this  case  the  opinions  of 
some  leading  publicists  were  secured  by  the  German  Govern- 
ment and  are  published  in  one  volume  by  Profs.  Brie,3  Fischer, 
and  Fleischmann. 

A  work  on  extradition,  dealing  especially  with  the  practice 
as  it  affects  Germany  and  German  courts,  reference  being 
made  to  treaties  and  decisions,  was  published  by  Dr.  Hans 
Delius.3  The  larger  and  more  scholarly  work  of  Prof,  von 
Martitz,4  of  Berlin,  deals  with  the  question  from  a  broader 
aspect.  Consular  jurisdiction  is  dealt  with  in  a  well-known 
work  by  Dr.  Konig,5  the  seventh  edition  of  which  in  two  vol- 
umes appeared  in  1909. 

A  recent  work  by  Kormann'''  on  the  act  of  State  in  adminis- 
trative law  has  attracted  favorable  attention.  Prof.  Piloty, 
in  an  extended  review  of  the  book  in  the  Archiv  jiir  offent- 


1  Stolzel,   O.     Rechtsprechung  des  Gerichtshofs  zur  entscheidung  der 

kompetenzkonflikte.  Berlin.  C.  Heymann,  1897.  638  p.  Supple- 
ments 1899  and  1906. 

2  Brie,    Fischer  &   Fleischmann.      Zwangsvollstreckung   gegen   fremde 

staaten  und  kompetenzkonflikt  in  anschluss  an  den  fall  Hellfeld. 
Breslau,  M.  u.  H.  Marcus,  1910.     184  p. 

3  Delius,     Hans.      Das   auslieferungsrecht,    unter    besonderer    beriick- 

sichtigung  der  stellung  des  ausgelieferten  vor  dem  erkennenden 
gericht,  fur  die  praxis  der  deutschen  justizbehorden.  Hannover, 
Hehvingsche  verlagsbuchhandlung,  1899.     106  p. 

4  Martitz,    von.      Internationale   rechtshilfe   in   strafsachen.      Leipzig, 

1888-1897. 
2  v. 

5  Konig,    B.    W.     Handbuch  des  deutschen  konsulanvesens.     7th    ed. 

Berlin,  Decker,  1909.     2  v. 

6  Kormann,   Karl.      System   der  rechtsgeschaftlichen   staatsakte.      Ber- 

lin, J.  Springer,  1910.     422  p. 


ADMINISTRATIVE    LAW  I  S3 

Itches  recht,  volume  28,  pages  384-401,  considers  it  one  of  the 
most  important  works  on  public  law  published  in  recent  years. 

The  State  as  a  corporation  in  public  law  was  the  subject  of 
a  monograph  by  Prof.  Otto  Mayer '  which  appeared  in  Laband's 
I'eslgabe  above  mentioned.  Prof.  Julius  Hatschek,2  of  Hei- 
delberg, has  also  published  an  interesting  monograph  on  the 
legal  position  of  the  State  as  a  fiscus. 

It  is  left  to  the  several  States  of  Germany  to  determine 
whether  redress  against  acts  of  the  administration  and  its  offi- 
cers shall  be  sought  in  the  ordinary  tribunals  or  in  specially 
organized  administrative  courts.  The  imperial  law  of  public 
officers,  therefore,  does  not  deal  with  this  jurisdictional  ques- 
tion, nor  with  other  questions  left  to  local  regulation.  A  com- 
mentary on  the  most  recent  statute  on  the  subject,  that  of 
.May  17,  1907,  was  published  by  Dr.  A.  Schulze3  (Leipzig,  1908). 
This  statute  contains  provisions  concerning  the  civil  sen-ice 
pensions  of  public  officers  and  employees.  The  recent  act  of 
May  22,  1910  {Reichsgesetzblatl  1910,  pp.  798-800),  governs 
the  responsibility  of  the  State  for  the  acts  of  its  officers. 

An  important  administrative  law  is  the  poor  relief  act. 
Poor  relief  was  originally  provided  for  bj  the  law  of 
June  6,  1870,  and  is  now  embodied  in  the  provisions  of 
the  act  of  May  30,  1908,  in  force  April  1,  1909  (G 
uhcr  den  U titer stiilzungswohnsitz).  It  provides  that  poor 
destitute  Germans  must  In-  supported  by  the  community  of 
their  domieil,  and  must  be  returned  to  that  place.  The 
acquirement   "I"   domieil,  the   lights  and  duties  of  the  indi 

'  Mayer,   Otto.     l>ii    juristische    person    und    Hire    vcrwertbarkeit   im 
offentliclien  recht.     Tubingen,  J.  C.   B,  Mohr  (P.  Siebeck),  1908. 

94  P- 
2  Hatschek,    Julius.     Die    rechtliche    stellung    des    fiskus    im   Burgei 

lichen  gesetzbuche.     Bine  studie  im  grenzgebiete  des  priv.it    und 

Sffentlichen  rechts.     Berlin,  C.  Heymann,  1899.     57  p. 
'Schulze,  A.     Reichsbean  von    17.    5.    07.     Leipzig,    Ross 

berg.  1908.    538  p.    (Juristische  Handbibliothek,  Bd.    276.) 


184        GUIDE  TO  THE  LAW  OF  GERMANY 

vidual,  the  administration  of  the  poor  relief  and  related 
questions  are  all  dealt  with  by  the  law.  The  appendix  to 
volume  33  of  the  report  of  the  Poor  Law  Commission  of  Great 
Britain,  contains  a  summary  of  "foreign  and  colonial  systems 
of  poor  relief."  Considerable  space  is  given  to  the  German 
system.  This  report  is  reprinted  in  the  Parliamentary  Papers, 
and  the  appendix  to  volume  33  is  also  known  under  its  com- 
mand number,  Cd.  5441. 

The  leading  work  on  the  subject  is  that  by  Dr.  Georg  Eger,1 
the  sixth  edition  of  which  appeared  in  1909.  The  act  of 
March  15,  1909,  concerning  the  effect  on  public  rights  of  an 
omciallv  declared  destitute  person  is  noticed.  Dr.  Eger's 
work  is  annotated  with  the  decisions  of  the  Bundesamt  within 
whose  jurisdiction  lies  the  determination  of  questions  arising 
under  this  law  of  poor  relief  and  domicil.  The  decisions 
themselves  are  published  officially  in  a  series  known  as  the 
Entscheidungen  dcs  bundesamts  fur  das  heimathwesen?  which 
was  begun  in  1873,  42  volumes  having  been  published  up 
to  1 9 10.  The  decisions  are  arranged  in  accordance  with  the 
sections  of  the  act  which  they  construe. 

The  more  important  administrative  laws  over  which  the 
Empire  has  jurisdiction,  are  noted  in  the  works  mentioned 
and  are  usuallv  contained  in  small  annotated  editions  in  the 
Guttentag'sche  Sammlung  and  other  collections  of  that  type. 

The  most  important  periodicals  on  public  law  are  the 
Archiv   fur   offentliches    recht,3   founded    in    1886,    edited    by 

1  Eger,  Georg.     Das  reichsgesctz  iiber  den  unterstiitzungswohnsitz  vom 
30  Mai  1908,  giiltig  vom  1,  April  1909.     6th  ed.      Breslau,  Kern, 

1909.     548  p- 
-  Entscheidungen  des  bundesamtes  fur  das  heimathwesen.     Edited  by 

von  Wohlers.  .   Berlin,  F.  Vahlen,  1873-1912.     44  v.  and  cont. 
3  Archiv  fur  offentliches  recht.      Freiburg   i.  B.  (etc.)     Akademische 

varlagsbuchhandlung  von  J.  C.   B.  Mohr  (P.  Siebeck)   1886-1910. 

26  v.  and  cont. 


PIBI.1C   LAW  185 

l'rofs.  Laband,  Stoerk,  and  Mayer;  the  Verwaltwngs-archiv,1 
dealing  entirely  with  administrative  law,  founded  in  1892, 
edited  hySehultzensteinand  Keil;  the  Jahrbuch  des  verwaltungs- 
rechts*  edited  by  Prof.  Stier-Somlo;  Soergel's  Jahrbuch 
der  rechtsprechung  zum  verwallungsrecht,3  in  which  the  decisions 
of  the  administrative  courts  are  reported  annually  from 
1909  on;  the  well-known  Zcitschrijt  fur  das  privat  und  offent- 
liche  rechl  der  gegenwart,4  edited  by  Prof.  Griinhut,  of  Vienna; 
the  Zeitschrift  fur  politik,6  edited  by  Profs.  Schmidt,  of  Frei- 
burg, and  Grabowsky,  of  Berlin,  published  since  1908;  the 
Zeitschrift  fur  volkerrecht  und  bundessiaatsrecht,"  founded  in 
1906,  under  the  editorship  of  Profs.  Kohler  of  Berlin,  and 
Oppenheim  of  Cambridge,  and  devoted  in  large  part  to  inter- 
national law;  the  oldest  of  all,  the  Zeitschrift  jur  die  gesammte 
staatswissenschaft?  founded  by  Mohl  in  1844,  now  edited  by 
Prof.  Biicher  of  Leipzig;  the  Annalen  des  Deutscken  Reichs,8 
known  as  Hirih's  Annalen,  founded  in  1867;  the  Archil)  fur 
soziali  >h  setzgebvmg  und  slatistik  '■'  founded  in  1889  and  edited 

1  Verwaltungsarchiv.  Zeitschrift  fur  verwaltungsrecht  und  verwal- 
tungsgerichtsbarkcit.  Hcrausgegcbcn  von  M.  Schultzenstein  u.  A. 
Keil.     Berlin,  C.  Heymann,  [893-1910.     18  v.  and  com. 

'Jahrbuch  des  vcrwaltungsrechts.  Jahrg.  1-6,  1905-1910.  Berlin,  F. 
Vahlen,  1907-1911,     6  v.  and  emit. 

'Jahrbuch  der  rechtsprechung  zum  verwaltungsrecht,  enthaltend  die 
gesamte  rechtsprechung  zum  reichs  und  landesrechtlichen  verfas- 
sungs-,  verwaltungs-  und  versicherungsrecht  r-3  jahrg.,  1007-1910. 
Stuttgart,  Deutsche  verlagsanstalt,  1909-1911.    3  v.  and  cont. 

4  Zeitschrift  fur  das  privat-  und  Sffentliche  recht  der  gegenwart.     Her- 

ausgegeben  von  Grunhut.     Vienna,  Alfred  Holden,  1.S74-1Q10.    v. 
1-38  and  cont. 

5  Zeitschrift  fur  politik.      Hrsg.   v.    Richard   Schmidt   und  Adolf  Gra- 

bowsky.    Berlin,  Heymann,   1008  and  cont. 
'  Zeitschrift  fur  volkerrecht  u  bundesstaalsrecht.     Hrsg.    v.  Josef  Kohler 

u  L.  Oppenheim.     Breslau,  J.  Y.  Kern,  njo;  and  cont. 
7  Zeitschrift  fur    die  gesammte  staatswissenschaft,  founded  by  Mohl  in 

1844.    Tubingen,  H.  Laupp,  1845  and  cont. 
'Annalen   des  \ord- 1  leutschen     Hundes,    now    Annalen   des  Dcutchen 

Reichs.     Berlin  S:  Mum-hen.  Schweitzer,  1867  and  cont. 
"  Archiv    fur  sozialc  gesetzgebung  u.  statistik.     Tubingen,   Mohi,   1889 

and  cont. 


1 86       GUIDE  TO  THE  LAW  OF  GERMANY 

by  Dr.  Heinrich  Braun;  and  lastly,  the  Jahrbuch  fur  gesetzge- 
bung,1  founded  by  Holtzendorff  and  Brentano  in  1872,  and 
edited  after  1881  by  Prof.  Schmoller.  The  last  four  periodi- 
cals devote  more  attention  to  economics  than  to  public  law. 

MISCELLANEOUS 

A  few  general  publications  merit  attention.  The  most 
important  are  the  volumes  reporting  the  meetings  of  the 
German  Bar  Association,'-  founded  in  i860  by  Prof.  Holtzen- 
dorff. These  volumes,  four  or  five  of  which  appear  for  each 
meeting — there  have  now  been  30 — constitute  a  valuable 
source  of  information  for  all  current  legal  problems  that  oc- 
cupy the  German  nation  and  German  lawyers.  It  is  really  a 
periodical  of  much  weight.  A  report  of  the  proceedings  and 
discussions  of  the  Bar  Association,  together  with  its  resolutions 
and  the  practical  results  of  its  debates  and  their  influence  on 
legislation,  was  published  by  Judge  Thomsen  3  in  1885,  on 
the  occasion  of  the  twenty-fifth  anniversary  of  its  organization. 
In  1910,  to  commemorate  the  fiftieth  year  of  its  existence, 
Judge  Theodor  Olshausen  *  prepared  a  similar  work,  which 
gives  a  synopsis  of  the  nroceedings  of  the  association  under 
the  different  branches  of  law  discussed. 

A  highly  esteemed  theoretical  work  of  a  general  character, 
upon  the  development  of  law  through   the  Influence  of  the 

1  Jahrbuch  fur  gesetzgebung,   founded  by  Holtzendorff  and   Brentano 

in  1872,  edited  after  1881,  by  G.  Schmoller.     Leipzig,  Duncker  & 
Humblot,  1872  and  cont. 

2  Deutscher  juristentag.     Verhandlungen  des  1-30.     Deutschen  juristen- 

tages.     Hrsg.  von  dem  schriftfuhrer-amt  der  standigen  deputation. 
Berlin,  G.  Jansen,  1860-1900. 

3  Thomsen.     Gesammtbericht  uber  die  thatigkeit  des  Deutschen  juris- 

tentags   in   den    25    jahren   seines   bestehens,    1860-1885.     Berlin. 
Commissions-verlag  von  J.  Guttentag  (D.  Collin)  1885.     240  p. 

4  Olshausen,  Th.     Der  deutsche  juristentag.     Berlin,  Guttentag,   1910. 

501  p. 


MISCELLANEOUS  1 87 

law  speaker,  "responsa,"  and  judicial  interpretation,  was 
written  by  Dr.  Adolf  Stolzel.1 

A  dictionary  of  English  law  for  German  lawyers  was  pre- 
pared by  Karl  Wertheim  2  in  1899.  It  may  on  occasion  be 
found  useful  in  investigating  specific  subjects  in  German  law. 

Attention  must  also  be  called  to  collections  of  monographs, 
usually  published  on  the  occasion  of  the  decennials  of  birth- 
days or  doctorate  anniversaries  of  prominent  jurists,  or  the 
anniversary  of  important  academic  events,  such  as  the  recent 
centennial  anniversary  of  the  establishment  of  the  University 
of  Berlin,  and  the  five-hundredth  anniversary  in  1909  of  the 
founding  of  the  University  of  Leipzig.'1  On  these  last  two 
occasions  the  firm  of  Otto  Liebmann  published  two  large 
works,  giving  the  history  of  the  law  faculties,  with  biographi- 
cal notes,  and  including  important  documents  showing  the  de- 
velopment of  the  department  of  law.  Anaccountof  the  history 
of  the  faculty  of  law  at  Berlin,  with  biographical  and  biblio- 
graphical notes,  appeared  in  the  A  utsclu  Juristenzeitung,  1910, 
Heft  20, columns  1097-1200.  Anumberof  the  more  important 
Festgaben  (jubilee  volumes)  which  have  recently  appeared, 
are  those  dedicated  to  Prof.  Karl  Giiterbock  '  whose  "  Bracton 
and  his  relation  to  the  Roman  law"  is  well-known  to  American 
lawyers;  to  Prof.  Gierke"'  of  Berlin,  the  eminent  Germanist; 


1  Stolzel,  Adolf.    Dieentwicklungdergelehrtenrechtsprechung.    Berlin, 

Vahlen,  1901-1910.    2  v. 
Wertheim,   Karl.     Wortcrbueli   rles  englischen  rechts.      Berlin,    Putt- 

kammer  &  Miihlbreeht,  1899.     575  p. 
'Liebmann,  0.     Die  juristische   fakultat   der  Universitat   Berlin  von 

ihrergrttndung  bis  zurgegen  wart.   Berlin,  0.  Liebmann,  1910.  526  p. 
Liebmann,  O.    Festgabe  der  deutschen  juristen-zeitung  zum   500  j&h- 

ri^en  jubilaum  der  Univ.  Leipzig,  1909. 
*  Festgabe  fur  Dr.  Karl  Giiterbock    .     .     .     zur  acMzigsterj   wiederkehr 

seines  geburtstages  dargebraeht  von  fruheren  und  den  gegenwarti- 

gen  angehorigen  der  fakultat.     Berlin,  Franz  Vahlen,  nno.    'mo  p. 
■Festgabe   <ler    Berliner   juristischen    fakultat   fair  Otto  Gierke    zum 

doktor-jubiluuni  am  21.     August  1910.     Breslau,  Marcus,  19 10.     3V. 


1 88  GUIDE   TO   THE   LAW   OF   GERMANY 

to  Prof.  Heinrich  Brunner, '  the  legal  historian;  to  Prof. 
Binding,2  the  noted  jurist  of  Leipzig;  and  to  Prof.  Kohler,3 
the  most  versatile  legal  scholar  of  the  present  day. 

We  can  not  leave  a  survey  of  German  legal  literature  with- 
out mentioning  the  names  of  jurists,  all  of  whose  works  may 
be  said  to  occupy  a  prominent  place  in  the  history  of  legal 
development  in  Germany.  The  names  of  Hugo,  Savigny, 
Haubold,  Heffter,  Zachariae,  Mohl,  Bluntschli,  Beseler, 
Mommsen,  Gneist,  Fcucrbach,  Mittermaier,  Goldschmidt, 
Bekker,  Windscheid,  Puchta,  Jhering,  Dernburg,  von  Bar, 
Stammler,  Wachter,  Wach,  Laband,  Jellinek,  Brunner,  Gierke 
and  Kohler  stand  as  lasting  monuments  to  the  preeminent 
legal  scholarship  of  the  German  nation. 

1  Brunner,  Heinrich.     Festschrift  Heinrich  Brunner  zutn  70.  geburtstag 

dargebracht.  Weimar,  Bohlau,  1910.  842  p. 
0  Binding,  Karl.     Festschrift   zu  Karl  Binding  zum   70.   geburtstag  6. 

6.  1911.  Leipzig,  W.  Engelmann.  1911.  2  v. 
3  Rechtswissenschaftliche  beitrage.     Juristische  festgabe  des   auslandes 

zu  Josef  Kohler's  60.  geburtstag.     Stuttgart,  F.  Enke,  1909.     202  p. 


GLOSSARY  OF  GERMAN  LEGAL  TERMS 


Avista.     Sight  bill. 

Abhandlung.     Essay,  treatise. 

Abkommlinge.     Descendants. 

Abladung.     Unloading,  deliver)',  discharge. 

Ablauf  der  Zeit,     Expiration  or  lapse  of  time. 

Ablchnung.     Disclaimer,  challenge  (of  a  juror). 

Ablosungssumme.     Redemption  sum 

Abschworung.     Abjuration. 

Abstrakter  \'ertrag.     Abstract  agreement . 

Abtretung.     The  assignment  of  a  right. 

Abzahlungsgeschaft.     "Hire-Purchase"  agreement. 

Advokat.     Attorney  at  law. 

Aechtung.     Outlaw  ry. 

Aergerniss.     Breach  of  the  peace. 

Akkordvertrag.     Piece  wage. 

Akten.     Legal  papers,  documents. 

Aktiengesellschaft.     Share  company  or  stock  company. 

Aktionniir.     Stockholder,  shareholder. 

Alimente.     Alimony. 

Altersversicherung.     Old-age  insurance. 

Amortisation.     Amortisation,  legal  extinction  (of  a  bill). 

Amtsanwalt.     Official,  government,  or  district  attorney. 

Amtsgcricht.     District  court. 

Amtsunfahigkeit.     Incapacity  to  hold  public  office. 

Amtsuntcrschlagung.     Embezzlement  of  public  funds. 

Amtsvergehcn.     Delinquency  in  office,  malversation  in  the  discharge  of 

official  duties. 
Aneignung.     Acquisition  of  ownership. 

Anerbenrecht.     Right  of  inheritance  iindcr  the  local  law  of  a  district. 
Anerkannte  Rcchnungsaufstellung.     Account  stated. 
Anerkennung.     Acknowledgement,  legitimation,  authentication. 
Anfall  der  erbsehaft.     Devolution  of  the  inheritance. 
Anfall  des  vermaehtnisses.      Devolution  of  a  legacy. 
Anfechtbar.     Voidable. 

Anfechtungsgegner.      Party  subject  to  having  his  act  declared  voidable. 

Anfechtungs(recht  igesetz      I. aw  as  to  avoidance  of  transactions  intended 

to  defeat  creditors. 
Angeklagter.     Accused  person,  defendant. 

189 


190  GUIDE   TO   THE   LAW   OF  GERMANY 

Angemessene  Frist.     Reasonable  time. 

Angeschuldigter.     Accused  person. 

Angewiesener.     Drawee. 

Anklagebeschluss.     Indictment. 

Anklageschrift.     Indictment. 

Ankindung.     Adoption. 

Anmeldung.     Notice,  notification. 

Annahme.     Acceptance. 

Anspruch.     Claim,  right  of  action. 

Anstalten.     Institutions. 

Anstifter.     Abettor. 

Anteilsberechtigte  Abkommlinge.     Participating  descendants. 

Antrag.     Information,  proposal,  motion. 

Antragsdelikt.     Offense  which  can  be   prosecuted  only  on  the  relation 

or  information  of  the  person  injured. 
Anwachsungsrecht.     Rights  accruing  by  reason  of  survivorship. 
Anwalt.     Attorney,  advocate. 
Anweisender.     Drawer. 

Anweisung.     An  order  to  pay  a  sum  of  money,  or  to  deliver  a  thing. 
Anweisungsempfanger.     Payee. 
Anzeige.     Information,  notification. 

Arbeiterrecht.     Labor  laws,  laws  governing  workmen  and  employes. 
Arbeitsvertrag.     Labor  contract. 

Arglist.     Aggravated  liability  attached  to  intentional  default. 
Arglistig.     With  intent  to  deceive. 

Arglistige  Tauschung.     Misrepresentation  with  intent  to  deceive. 
Armenrecht.     Right  to  appear  as  poor  person,  judicial  assistance  to  a 

poor  litigant. 
Aufgebot.     Public  notice. 
Aufgebots verf ahren .     Procedure    by   public   summons,    proceeding   by 

public  citation. 
Aufhebung  der  ehelichen  Gemeinschaft.     Dissolution  of  the  conjugal 

community,  or  judicial  separation. 
Auflage.     (1)  A  burden  imposed  on  a  donee  or  legatee,  testamentary 

burden;  (2)  edition. 
Auflassung.     Conveyance  by  agreement  of  real  property. 
Auflosung.     Dissolution. 
Aufrechnung.     An  independent  right  of  set-off  against  a  creditor,  before 

action  brought;  settlement,  adjustment,  squaring  of  an  account. 
Aufschiebende  Bedingung.     A  condition  precedent. 
Aufschub.     Suspension  (of  sentence). 
Aufsichtsrat.     Board  of  supervision. 

Auftrag.     Mandate,  or  agreement!  for  unremunerated  services. 
Auftraggeber.     The  mandant,  at  whose  request  unremunerated  services 

are  given. 
Auseinandersetzung.     Right  of  co-heir  to  claim  partition  of  the  estate; 

liquidation  of  association  or  corporation. 


GLOSSARY  191 

Ausfertigung.     Drawing  up,  execution  (of  a  deed  or  instrument). 

Ausf iihrungsgesetz .  Law  in  execution  of  another  law  or  act;  statute 
providing  for  the  introduction  of  the  new  law 

Ausgleichungspflicht.     Hotchpot  liability. 

Ausladung.     Discharge,  unloading. 

Auslagen.     Disbursements. 

Auslander.     Alien. 

Auslegung.     Construction. 

Auslicferung.      I{x  tradition. 

Auslobung.     A  public  promise  of  a  reward  for  a  specified  act. 

Ausscheiden.     Withdrawal  or  retirement  (of  a  partner,  etc.). 

Ausschlagung  der  erbschaft.     Disclaimer  of  an  inheritance. 

Ausserungstheorie.  "  Doctrine  of  utterance,  "  that  in  making  a  contract, 
the  intent  to  be  bound  is  communicated  upon  dispatch  of  the  message. 

Ausstattung.  1 1  1  The  particular  way  in  which  goods  are  packed  or  made 
up  (trade-mark  cases).  (2)  Property  transferred  by  a  parent  to  a 
child,  for  the  purpose  of  founding  a  home  or  establishing  a  position 
in  life  for  such  child,  advancement. 

Aussteller.     Drawer,  maker. 

Ausstcuer.  "Outfit,"  usually  provided  by  a  father  on  the  marriage  of 
his  daughter. 

Auswanderung.     Emigration. 

Ausweisung.     Expulsion. 

Ausziige.     Abstracts. 

li.mkdepotgesetz.     Law  regulating  deposit  of  securities  with  banks,  etc. 

Barraterie.     Barratry. 

Beamte.     Public  officer. 

Beauftragtc,  der.  Mandatary  or  person  who  performs  unrcmunerated 
services  for  another. 

Bedingtes  Rechtsgcschaft.     An  act  subject  to  a  condition. 

Bedingung.     A  condition. 

Bedingung,  auflosende.     A  condition  subsequent. 

Bedingung,  aufschiebende.     A  condition  precedent. 

Bedingung,  notwendige.     A  necessary  condition. 

Bedingungen,  uneigentliche.  Unreal  conditions  (conditions  in  appear- 
ance only). 

Bedingung,  unmoglichc.     Impossible  condition. 

Bedrohung.     Threat. 

Befordcrung.     Conveyance. 

Befrachter.     Charterer. 

Befrcite  Vormundschaft.     Exempted  guardianship. 

Befristetes  rechtsgcschaft.     Act  subject  to  a  stipulation  as  to  timi 

Bcgnadigung.     Pardon. 

Begunstiger.     Accessory]  abettor. 

Begiinstigung  einzelner  glaubiger.  Favoring  on.-  credit  .r  :is  against 
others,  paying  preferred  creditor. 

Beischlaf.     Cohabitation. 


192        GUIDE  TO  THE  LAW  OF  GERMANY 

Beitragspflichtige  Werthe.     Contributory  values. 

Belastetes  Grundstiick.     Servient  tenement. 

Bereicherung,  ungerechtfertigte.  Unjustified  benefits,  unjust  enrich- 
ment. 

Bergelohn.     Reward  in  the  case  of  salvage. 

Bergrecht.     Mining  law. 

Bergung.     Salvage. 

Berufung.     Appeal  (of  a  decision  of  first  instance). 

Bescheinigung.     Attestation. 

Beschlagnahme.     Sequestration,  seizure. 

Beschluss.     Resolution,  decision,  decree. 

Beschrankte  Gesehaftsfahigkeit.  Restricted  disposing  capacity  of  a 
person. 

Beschrankte  personliche  Dienstbarkeiten.  Restricted  i  limited)  personal 
servitudes. 

Beschuldigter.     Prisoner,  defendant. 

Beschwerde.  Complaint;  Appeal  from  a  Beschluss  (decree "l,  generally 
on  facts  and  law. 

Beseitigung.     Annulment  or  revocation. 

Besitzdiener.     Possessor's  servant,  or  he  who  has  possession  for  another. 

Besitzgehilfe.     Possessor's  assistant,  or  he  who  has  possession  for  another. 

Bestallung.     Certificate  of  appointment  of  a  guardian. 

Bestandteil.     Component  part. 

Bestechung.     Bribery. 

Besteller,  der.     The  employer. 

Bestimmungsort.     Place  of  destination. 

Betrug.     Fraud,  deceit. 

Betriiglicher  Bankerott.     Fraudulent  bankruptcy. 

Beurkundung.     Verification,  authentication  (public). 

Bevollmachtigter.     Agent  or  attorney  with  full  powers. 

Bewegliche  Sachen.     Movables. 

Beweis.     Information,  proof. 

Beweisaufnahme.     Taking  of  testimony. 

Bezogener.     Drawee. 

Bilanz.     Treasury  balance,  balance  sheet. 

Bildende  Ktinste.     Formative  arts  (copyright). 

Billigkeit.     Equity,  justice. 

Binnenschiffahrtsrecht.     Inland  navigation. 

Blaubiicher.     Blue  books. 

Blutsbriiderschaft.     Cognates  (fraternity  by  blood). 

Blutschande.     Incest. 

Bodmerei.     Bottomry. 

Borsengesetz.     Stock  Exchange  Act. 

Bosliche  Schadigung.     Damage  done  recklessly. 

Boswilligkeit.     Aggravated  liability  attached  to  intentional  default. 

Bote.     A  Messenger. 

Botschafter.     Ambassador. 


GLOSSARY  1 93 

Brandstiftung.     Arson. 

Buchforderung.     Uncertificated  claim. 

Budnerreeht.     Right  of  cottager,  which  is  heritable. 

Bundesstaat.     State  (of  the  German  Confederation). 

Bundesstaatsrecht.     Constitutional  law  of  the  (German)  Confederation. 

Burge.     Surety. 

Biirgerliches  Gesetzbuch  (abbreviated  B.  G.  B.).     Civil  Code. 

Biirgerliches  Recht.     Civil  law. 

Biirgsehaft.     Guarantee,  surety,  bail. 

Busse.     Mulet,  assessment  of  money  damages,  fine. 

Chartepartie.     Charter  party. 

Chikaneverbot.  Prohibition  of  chicanery,  or  prohibition  of  the  exercise 
of  a  right  which  can  have  no  purpose  except  the  infliction  of  injury 
on  another. 

Creditauftrag.     An  instruction  to  give  credit  ^o  a  third  party). 

Darlehen.     A  loan  of  money  or  fungibles. 

Darlehnsgeschaft.     Loan  transaction. 

Delikt.     Tort. 

Despacheure.  Average  staters  (Average  adjusters  who  act  in  the  case  of 
general  average  of  a  ship's  cargo). 

Destinatiir.     Cestui  que  trust. 

Diebstahl.     Larceny. 

Dienendes  Grundstiick.     Servient  tenement. 

Dienstbarkeiten.     Servitudes. 

Dienstberechtigte,  der.     Employer. 

Dicnstleistung,  der  zur,  Verpfiichtete.     Employee. 

Dienstverlrag.     An  agreement  for  services. 

Dinglieher  Vertrag.     Real  agreement  (referring  to  property). 

Dingliches  Recht.     Rial  right    referring  to  a  tangible  thing). 

Dispachirung.     Adjustment. 

Doppelehe.     Bigamy. 

Draufgabe.     Payment  of  earnest  money. 

Draufgeld.      Earnest  mom  \  . 

Dreissigsten ,  Recht  des.  The  right  in  the  absence  of  a  contrary  ti 
military  disposition)  of  such  of  tin-  members  of  the  family  ol  the 
deceased  as  belong  to  his  household  at  the  time  of  his  death,  to  be 
maintained  during  the  first  30  days  after  tin-  death  of  tin-  deceased, 
in  tile  same  manner  as  they  were  maintained  l>v  the  deceased,  .nid 
to  use  tlie  dwelling  place  of  the  deceased  and  the  household  articles 
contained  therein. 

Drohung.     Threats. 

Durchstreichung.     Cancellation. 

Ediktalzitation.     Service  (or  citation)  by  publication. 

Ehe.    Marriage. 

Lhibruch.     Adultery. 
29774°— 12 13 


194        GUIDE  TO  THE  LAW  OF  GERMANY 

Ehegiiterreclit.  Matrimonial  regime,  or  effect  of  a  marriage  on  the 
property  owned  by  each  of  the  spouses  at  the  date  of  the  marriage 
or  subsequently  acquired. 

Eheliche  Lebensgemeinschaft.     Conjugal  community. 

Eheliches  Giiterrecht.  Matrimonial  regime,  or  effect  of  the  marriage  on 
the  property  owned  by  each  of  the  spouses. 

Ehelichkeitserklarung.     Legitimation  by  order  of  a  public  authority. 

Ehescheidimg.     Divorce. 

Eheschliessung.     Celebration  of  marriage. 

Ehevertrag.     Marriage  contract. 

Ehrenannahme.     Acceptance  for  honor. 

Ehrenkrankung.     Slander,  defamation. 

Ehrenrechte.     Civil  rights  and  privileges. 

Eid.     Oath. 

Eigenhandiges  Testament.     Holograph  will. 

Eigensbesitzer.     Proprietary  possessor. 

Eigentum .     Ownership. 

Eigentum  zur  gesamten  Hand.     Coownership. 

Eigentiimerhypothek.  A  charge  in  favor  of  the  owner  of  mortgaged 
property. 

Eigentumergrundschuld.  A  charge  in  favor  of  the  owner  of  mortgaged 
property. 

Eigenwechsel.     Promissory  note. 

Einfuhrungsgesetz.  Law  by  way  of  introduction,  or  introductory 
statute. 

Eingebrachtes  Gut.  Property  of  the  wife  which  under  normal  circum- 
stances comes  under  the  husband's  power  of  management;  contrib- 
uted property. 

Eingetragener  Yerein.     Registered  society. 

Einigung.     Real  agreement  (referring  to  tangible  property). 

Einrede.     Exception,  plea,  caveat. 

Einrede  der  Yorausklage.  Plea  of  "Beneficium  excusionis,"  or  right  of 
the  surety  to  require  the  creditor  to  prove  that  he  has  obtained  a 
judgment  against  the  principal  debtor  and  that  his  attempt  to  enforce 
it  was  unsuccessful. 

Einspruch.     Exception,  objection. 

Einstweilige  verfiigung.     Provisional  decree. 

Eintragungsbewilligung.     An  authority  for  registration. 

Einwilligung.     Assent,  consent;  approval. 

Eisenbahnrecht.     Railroad  law. 

Elterliche  Gewalt.     Parental  power. 

Empfanger.     Receiver,  donee. 

Empfangsbediirftige  Willenserklarung.  A  declaration  of  intention 
requiring  communication. 

Empfangstheorie.  "Doctrine  of  receipt,"  that  in  making  a  contract, 
communication  of  the  intent  to  be  bound  is  incomplete  until  the 
message  is  received  by  the  addressee. 


GLOSSARY  195 

Endurtheil.     Definitive  or  filial  sentence. 

Entfiilirung.     Abduction. 

Entlassung.     Discharge. 

Entmiindigung.     Placing  under  guardianship. 

Entmundigungsrecht.     Law    of    establishment    of    guardianship    over 

person  incapable  of  managing  his  own  affairs. 
Entsclieidung.     Decision,  judgment,  award,  verdict. 
Erbbaurecht.     Heritable  building  right. 
Erbe.     Heir. 

Erbfall.     Accrual  of  inheritance. 
Erbfolge.     Succession. 

Erbfolge  nach  Stammen.     Succession  per  stirpes. 
Erbgut.     Hereditament. 
Erbpacht.     Heritable  lease. 
Erbschaft.     Inheritance. 

Krbschaftsbesitzer.     Possessor  of  the  inheritance. 
Erbschaftskauf.     An  obligatory  agreement  by  which  the  heirs  jointly 

agree  to  deliver  or   transfer  to  the  purchaser  the   specific  objects 

forming  part  of  an  estate. 
Erbsehein.     Certificate  of  inheritance. 
Erbteil.     Share  in  an  inheritance. 
Erbunwiirdigkeit.     Unworthiness  to  inherit. 
Erbvertrag.     Contract  of  inheritance. 
Erbverzicht.     Renunciation  of  inheritance. 
Erfullung  Zug  um  Zug.     Contemporaneous  performance. 
Erfullungshalber.     Cm  account  of  performance. 
Erfullungsinteresse.      Interest  in  the  performance  of  a  contract. 
Erfiillungsort.     Place  of  performance. 
ErfulltmgSStatt.      In  lieu  of  performance. 
Erganzung  des  Pllichtteils.     Augmentation  of  the  compulsory  portion 

of  the  heir. 
Erganzungsgeschworenen.     Supplementary  jurors. 
Erkenntnis.     Judgment,  award,  decision. 
Erklarungstheorie.     Doctrine   of    "  Declared    intention,"    as   binding    a 

person,  regardless  of  his  actual  intention. 
Ermachtigung.     Authorization. 
Ermittelungen.     Discover)-,  inquiry. 
Erneucrungsschein.     Renewal  coupon. 

ErofTnungsprotokoIl.     Minutes  of  the  proceedings,  in  probate  of  a  will. 
Erpressung.     Extortion. 
Errichtungsprotokoll.     Minutes  of  the  proceedings,  in  executing  a  will 

in  public  form. 
Erningenschaftsgcmcinschaft.     Regime   of  community   of   income   and 

profits. 
Krsatzcrbe.     Substitutional  heir. 
Krschlichene  Ehe.     Marriage  in  which  one  party  has  been  guilty  of  eon 

cealing  a  legal  obstacle  to  it  or  has  been  guilty  of  fraud  in  inducing 

tlie  other  party  to  contract  it. 


196        GUIDE  TO  THE  LAW  OF  GERMANY 

Erschwerte  Amtsunterschlagung.    Falsification  of  official  accounts. 

Ersitzung.     Acquisition  of  ownership  by  long  possession;  usucaption. 

Erwerb  von  Todeswegen.     Acquisition  of  property  mortis  causa. 

Ervverbs-  und  Wirtschaftsgenossenschaft.     Cooperative  society. 

Fahrlassigkeit.     Negligence. 

Fahrnisgemeinschaft.     Community  of  movables. 

Falsche  anschuldigung.     False  accusation. 

Faustpfand.     Pignus  (Pledge). 

Fehlerhafter  Besitz.     Faulty  possession. 

Feldesstreckung.     A  plan  showing  the  exact  position  and  dimensions  of 

a  mine  intended  to  be  acquired. 
Fensterrecht.     Mutual  rights  of  neighbors  concerning  windows. 
Festsetzung.     Assignment  (of  dower,  etc.),  establishment. 
Feststellungen.     Taxation  (of  costs),  determination. 
Festungshaft.     Confinement  in  a  fortress. 
Firma.     Firm  name. 

Fiskus.     The  State  as  a  business  corporation. 
Fixgeschaft.     Business  on  fixed  terms. 
Forderung.     Claim,  demand,  credit. 
Forderungsrecht.     Chose  in  action,  demand. 
Forstrecht.     Forest  law  or  regulations. 
Fortgesetzte  Gtitergemeinschaft.     Continued  community  of  matrimonial 

property. 
Frachtbrief.     Way-bill,  bill  of  lading. 
Frachtfiihrer.     Common  carrier. 
Frachtgeschaft.     Business  of  carriers. 
Frachtverlust.     Loss  of  freight. 

Frachtvertrag.     Contract  of  affreightment  or  charter  party. 
Freie  Yerfiigung.     Free  disposition. 
Freies  Vermogen.     Free  property  belonging  to  a  child,  in  which  the 

usufruct  of  the  parent  is  barred;  privileged  property. 
Freiheitsberaubung.     False  imprisonment,  unlawful  detention. 
Freisprechung.     Acquittal. 
Freispruch.     Acquittal. 

Freiwillige  Gerichtsbarkeit.     Non-contentious  jurisdiction. 
Freizeichen.     A  trade-mark  in  general  use. 
Friedensbruch.     Breach  of  the  peace. 
Fruchtabtreibung.     Abortion. 
Friichte.     Fruits. 

Friichte  eines  Rechtes.     Fruits  of  a  right. 
Friichte  einer  Sache.     Fruits  of  a  thing. 
Fundklage.     Action  of  trover. 
Gastwirt.     Innkeeper. 
Gebrauchsmuster.     Useful  model. 
Gebiihren.     Fees,  costs,  dues. 

Gefalligkeitswechsel.     Accommodation  bill  of  exchange  or  note. 
Gefangnis.     Prison,  jail. 


GLOSSARY  197 

Gegen  die  guten  Sitten.     Contra  bonos  mores. 

Gegenansprueh.     Counterclaim. 

Gegenforderung.     Counterclaim. 

Gegenseitiger  Yertrag.     Reciprocal  agreement. 

Gegenstand.     Object. 

Gegenstandrecht.     Law  of  things  (property). 

Gegenvormund.     Supervising  guardian. 

Gehiilfen.     Assistants. 

Gcisteskranke.     Insane  persons,  mentally  defective  persons. 

Geiteskrankheit.     Unsoundness  of  mind. 

Geistesschwache.     Mental  infirmity. 

Geldstrafe.     Money  fine. 

Gelegenheitsgesellschaft.     Syndicate. 

Gcmcindeverwaltung.     Local  administration. 

( .1  rm  indevorsteher.     Chief  communal  officer. 

(VniL-indewaisenrath.     Communal  Orphan  Council. 

Gemeinschaft   des  beweglichen   Yermogens  und   der   Errungenschaft. 

Community  of  movables  and  of  income  and  profits. 
Gemeinschaft  nach  Bruchteilen.     Community  (common  ownership)  by 

undivided  shares. 
Gemainschaft  zur  gesamten  Hand.     More  intimate  community  of  goods 

(e.  g.  of  husband  and  wife,  partnership,  etc.i. 
Gemeinschaftlicher  erbteil.     A  joint  share  in  an  inheritance. 
Gemeinschaftliches  testament.     Joint  will. 
Genehmigung.     Ratification. 

Generalversammlung.     General  meeting  of  the  stockholders. 
Genossenschaft.     Association. 
Gcrechtigkeit.     Equity,  justice. 

Gerichtlichc  Beurkundung.     Authentication  by  public  act. 
Gerichtsakten.     Judicial   acts;    written   proceedings;    records;    rolls  of 

court. 
Gerichtsamt.     Court  of  justice. 
Gerichtsbar.     Justiciable. 
Gerichtsbarkeit.     Jurisdiction. 

Gerichtsbarkeit,  freiwillige.     Non -contentious  jurisdiction. 
Gerichtsbcscheid.     Decision,  decree,  sentence  of  the  court. 
Geriehtsbeschluss.     Decision,  decree,  sentence  of  the  court. 
Gerichtshandcl.     Action,  law  suit,  case,  legal  proceedings. 
Gerichtshof.     Court  of  justice. 
Gcrichtsordnung.     Rules  of  court. 
Gerichtsschreiber.     Clerk  of  the  court. 
Gerichtssprache.     Legal  terminology. 
Gerichtsstand.     Subject  to  a  court  <t  fi >r«im 
Gi  richtsverfahren.     Judicial  proceedings. 
Gerichtsverfassung.     Judicial  organization,  judiciary. 
Gcrichtsverfassungsgesetz.     Jucjiciarv  Act 
Gerichtsverhandlung.     Judicial  proceedings. 


1 98        GUIDE  TO  THE  LAW  OF  GERMANY 

Gerichtsverwaltung.     Administration  of  justice. 

Gerichtsvollzieher.     Bailiff,  sheriff. 

Gerichtswesen.     Judicial  affairs,  judiciary. 

Gerichtszwang.     Jurisdiction. 

Gesammtglaubiger.     Joint  creditors. 

Gesammtgrundschuld.  A  collective  charge  on  several  independent 
parcels  of  property. 

Gcsammtgut.     Common  property. 

Gesammtgutverbindlichkeitcn.     Liabilities  of  the  common  property. 

Gesammthander.     Joint  owners  of  property. 

Gcsammthypothek.  A  collective  charge  on  several  independent  parcels 
of  property. 

Gesammtprokura.     Collective  procuration  or  power  of  attorney. 

Gesammtscliuldner.     Joint  debtors. 

Gesammtschuldnerschaft.     Bankruptcy. 

Gcsammtstaat.     Federative  empire. 

Geschaftsfahigkeit.     Full  disposing  capacity. 

Geschaftsfuhrer.     Manager,  voluntar)'  agent. 

Geschaftsfuhrung  ohne  Auftrag.  Rendering  of  voluntary  services,  or  the 
conduct  of  business  on  behalf  of  another  without  his  request. 

Geschaftsherr.     Involuntary  principal. 

Geschworener.     Juror,  juryman. 

Geschwomenbank.     Jury  box. 

Geschwornenobmann.     Foreman  of  the  jury. 

Geschwornenverzeichnis.     Array. 

Gesellschaft.     Non-mercantile  partnership. 

Gesellschaft  mit  beschrankter  Haftung.  Partnership  with  limited  lia- 
bility. 

Gesellschafter.     Partners,  share-holders. 

Gesellschaftsvermogen.     Partnership  property. 

Gesellschaftsvertrag.     Articles  of  association. 

Gesetzgeber.     Lawgiver,  legislator. 

Gesetzgebung.     Legislation. 

Gesetzliche  Erben.     Statutory  heirs. 

Gesetzlicher  Erbteil.     Statutory  portion  (of  an  inheritance). 

Gesetzlicher  Vertreter.     Statutory  agent. 

Gesetzliches  Giiterrecht.     Statutory  regime  of  matrimonial  property. 

Gewahrfrist.     Specified  period  of  warranty. 

Gewahrleistung.     Warranty. 

Gewerbeordnung.     Trade  Regulations  Act,  Industrial  Code. 

Gewerberecht.     Trade  laws;   industrial  regulations. 

Gewerbeunfallvcrsicherungsgesetz.     Industrial  Accident  Insurance  Law. 

Gewerbsmassig.     Professionally. 

Gewinnanteilsscheine.     Dividend  warrants. 

Gewohnheitsrecht.     Customary  law. 

Giro.     Endorsement. 

Glaubiger.     Creditor  (person  from  whom  any  act  of  performance  is  due). 


GLOSSARY  1 99 

Glaubigeranfechtung.     Creditors' suits,  or  seizure  to  prevent  assignment 

in  fraud  of  creditors. 
Glaubiger-Yerzug.     Creditor's  delaying  or  refusal  to  accept    the    per- 
formance tendered  by  the  debtor. 
Gotteslasterung.     Blasphemy. 
Grabschandung.     Grave-robbing. 
Grobe  Fahrlassigkeit.     Gross  negligence. 
Grosse  Haverei.     General  average. 
Grand,  wichtiger.     Cogent  ground. 
Grundakten.     The  original  or  an  authenticated  copy  of  every  document 

filed  in  support  of  the  application  for  registration,  retained  at  the 

registry. 
Grundbuchblatt.     Folio  in  a  register. 
Grundbuchordnung.     Land  Registry  Act. 
Granddienstbarkeit.     Real  servitude. 
Grundschuld.     Land  charge. 

Grundstiick  des  Berechtigten.     Dominant  tenement. 
Grundstucke.     Immovables,  real  estate. 
Grundstiickpfandrechte.     Charges  (mortgage,  land  and  annuity)  on  real 

property. 
Griindungsfonds.     Foundation  fund . 
Gut.     Goods,  waresand  merchandise. 
Gutachten.     Opinion. 
Guter  glaube.     Good  faith. 

Giiterrechtsregister.     Marriage  property  register. 
Giitertrennung.     Separation  of  goods. 
Hafengelder.     Port  dues. 
Haft.     Detention,  arrest. 

Haftbefehl.     Order  of  arrest,  writ  of  attachment  against  the  person. 
Haftpflicht.     Liability  for  damages. 
Haftung.     Liability;  responsibility. 
Hammcrschlagrecht.     The  right  of  the  owner  of  a  parcel  of  land  to  have 

access  to  the  neighboring  land  for  the  purpose  of  affixing  planks  to 

buildings  standing  on  his  own  land. 
H  mdelsgericht.     Court  of  commerce. 
Handelsgeschaft.     Mercantile  transaction. 
Handclsgcsellschaft.     Mercantile   association,  including   corporation   as 

well  as  the  various  kinds  of  partnership. 
Handclsgcsellschaft ,  offene.     A  mercantile  partnership  with  unlimited 

liability  for  all  the  partners. 
Handelsgesetzbuch.     Commercial  Code 
Handclskauf.      Purchase  and  sale. 
Handelsmakler.     Mercantile  broker. 
Handelsmarken.     Trademarks. 
Handelsrecht.     Commercial  law.  mercantile  law. 
Handclsrcgistcr.     Register  of  firms,  mercantile  associations  and  traders; 

Trade  register. 


200  GUIDE   TO   THE   LAW   OF   GERMANY 

Handgeld.     Earnest  money. 
Handlungsagent.     Mercantile  agent. 

Handlungsfahigkeit.     Capacity  for  incurring  liability  in  respect  of  unlaw- 
ful acts  as  well  as  capacity  for  acts-in-law 
Handlungsgehufle.     Clerk. 
Handlungslehrling.     Apprentice. 

Handlungsvollmacht.     Ordinary  mercantile  power  of  agency. 
Hauptmangel.     Principal  defects. 
Hauptsache.     Principal  thing. 

Hauptverfahren.     Examination  in  chief,  final  hearing  or  trial. 
Hauptverhandlung.     Trial. 

Hausfriedensbruch.     Breach  of  privacy  or  peace  of  the  house  and  home. 
Hehlerei.     Receiving  of  stolen  goods. 
Heimatshafen.     Home  port. 
Heimatwesen.     Domicil  law  (poor  relief). 
Heiratsregister.     Marriage  register. 
Heiratsversprechen.     Promise  of  marriage. 
Hemmung  der  Verjahrung.     Suspension  of  prescription. 
Herrschendes  Grundstiick.     Dominant  tenement. 
Heuer.     Hire,  wages. 
Heuervertrag.     Contract  of  hire. 
Hinterlegung.     Lodgment  with  a  public  authority. 
Hochverrat.     Treason. 
Hohere  Gewalt.     Act  of  God. 
Honorant.     Acceptor  (of  a  bill)  for  honor. 
Hiilfeleistung.     Maritime  assistance. 

Hiilfsleistung  in  Seenoth.     Rendering  assistance  in  cases  of  distress  at  sea. 
Hiilfslohn.     Salvage  award,  reward  in  the  case  of  maritime  assistance. 
Hypothek.     Hypotheca;  hypothecary  charge:  mortgage. 
Hypothekenbankgesetz.     Mortgage  bank  law. 
Imaginairer  Gewinn.     Speculative  profits. 

Immaterialrechte.     Incorporeal  rights,  patent  right,  copyright,  etc. 
Immobiliarvertrag.     Contract  for  real  property  or  immovables. 
Inhaber  (bei  Wertpapieren).     Bearer,  holder  (of  negotiable  instruments.) 
Innung.     Guild,  trade  union. 

Invalidenversichenmgsgcsetz.     Invalidity  Insurance  Act. 
Inventar.     (i)  inventory,  (2)  farm  stock. 
Inventarerrichtung.     Filing  of  the  inventory  (of  an  estate). 
Inventarfrist.     Inventory  period. 
Irrtum.     Mistake. 
Jagdgesetze.     Game  laws. 
Jahreslisten.     Annual  jury  lists. 
Juristentag.     Law  meeting. 

Juristische  person.     Juristic  or  legal  person;  corporation. 
Justizverwaltung.     Judicial  organization,  administration  of  justice. 
Kammergericht.     Supreme  court  of  judicature  in  Prussia. 
Kaplaken.     Primage. 


GLOSSARY  20I 

Kartellen.     Trusts. 

Kauf  auf  Probe.     Sale  on  approval. 

Kauf  nach  Probe.     Sale  according  to  sample. 

Kaufmann.     Mercantile  trader. 

Kaufrnannischer  Verpflichtiingsschein.      .Mercantile  promise  to  pay  or 

deliver. 
Kaufmannisches  ZuruckbehalUingsrcclit.     Mercantile  lien. 
Kaution.     Bail,  security. 
Kcnnen  musste.     Ought  to  have  known. 
Kinder.     Children  (sons  and  daughu  i 
Kinderraub.     Kidnapping. 
Kirchenrecht.     Ecclesiastical  or  canon  law. 
Klage.     Complaint,  declaration,  suit,  claim. 
Klageschrift.     Bill  of  complaint;  libel  (in  admiralty). 
Kodizill.     Codicil. 

Kollektivprokura.     Collective  procuration  or  power  of  attorney. 
Kommanditgesellschaft.     Commandite  partnership,  with  limited  liability 

for  only  one  or  some  of  the  partners. 
Kommanditist.     A  partner  liable  for  a  fixed  amount  only. 
Kommissionar.     Commission  merchant. 
Kommissionsgeschaft.     Agency. 
Konkurs.     Bankruptcy. 
Konkursordnung.     Bankruptcy  Act. 
Konnossement.     Bill  of  lading. 
Kontokorrent.     Running  account. 
Kontokorrent  Yertrag.     Mercantile  agreement. 
Konventionalstrafe.     Conventional  penalty. 
Korperschaften.     Corporations. 
Korperverletzung.     Bodily  injurs  . 
Korrespcktive  Yerfiigungen.     Corrcspective  testamentary  dispositions  of 

husband  and  wife. 
Korrcspondentrheder.     Ship's  husband  or  managing  owner 
K<  >rrcspondierender  Reeder.     Ship 's  husband  or  managing  owner. 
Knsten.     Costs. 

Kostenvorschuss.     Advance  of  the  costs,  security  for  costs. 
Kraftloserklarung.     Amortization. 
Krankenvcrsichcrung.     Insurance  against  sickness. 
Krcditauftrag.     An  instruction  to  give  credit  to  a  third  party. 
Kiindigung.     Notice. 
Kuppelei.     Pandering. 
Kustenschiffahrt.     Coasting  trade. 
Ladung.     Cargo;  service  of  process. 
Lagcrgeschaft.     Warehousing. 
Lagerhalter.     Warehouseman. 
Landesgcsetz.     Local  law  of  a  province  or  state. 

Landgcricht.     Superior  Court  having  appellate  jurisdiction  in  certain 
cases  over  the  Amtsgericht  (District  Court  . 


202        GUIDE  TO  THE  LAW  OF  GERMANY 

Landgut.     A  farm. 

Laufende  Rechnung.     Running  account. 

Lehnsrecht.     Feudal  law. 

Leibgedinge.     Dower,  settlement  in  jointure. 

Leibrente.     Annuity  (any  periodical  acts  of  performance). 

Leibrentenvertrag.     Annuity  agreement. 

Leichterfahrzeug.     Lighter,  barge. 

Leihe.     Loan  for  use. 

Leistung.     Performance. 

Leistungsort.     Place  of  performance. 

Letztwillige  \'erfiigung.     Testamentary  disposition. 

Letztwillige  Zuwendung.     Testamentary  gift. 

Lichtrecht.     Pule  as  to  the  mutual  rights  of  neighbors  concerning  access 

of  light. 
Liegegeld.     Demurrage. 
Liquidation.     Liquidation,     balancing     accounts     on     dissolution     (of 

partnership). 
Lootsengeid.     Pilotage  dues. 

Loschuugsbewilligung.     An  authority  for  cancellation. 
Makler.     Broker. 

Maklervertrag.     Brokerage  agreement. 
Meineid.     Perjury. 
Menschenraub.     Kidnapping. 
Menschentotung.     Homicide. 
Mietvertrag.     Ordinary  lease. 
Mietzeit.     Term  of  a  lease. 

Mildernde  LTmstande.     Extenuating  circumstances. 
Minderjahrige.     Infants. 
Minderkaufmann.     Lesser  mercantile  trader. 
Minderung.     Reduction  of  the  purchase  price. 
Mit  Gewalt.     By  force. 
Mitbesitz.     Joint  possession. 
Mitbiirgen.     Co-sureties. 

Miteigentum.     Co-ownership  or  tenancy  in  common. 
Miterben.     Co-heirs. 
Mitgift.     Dowry. 

Mittelbarer  Besitz.     Indirect  possession. 
Mord.     Murder. 

Motiven.     Motives,  whys  and  wherefores. 
Miindel.     Ward. 
Mutung.     Mining  claim. 
Nacherbe.     Reversionary  heir. 
Nachlass.     Estate  of  deceased  person. 

Nachlassgericht.     Court  dealing  with  the  estates  of  deceased  persons. 
Nachlassglaubiger.     Creditor  of  the  estate. 
Nachlasspfleger.     Curator  of  the  estate. 
Nachlassverbindlichkeiten.     Liabilities  of  the  estate. 


GLOSSARY  203 

Nachlassverwalter.     Administrator. 

Nachlassverwaltung.     Administration  of  an  estate  by  an  administrator 

appointed  by  the  competent  Probate  Court. 
Nachtrag.     Codicil. 
Nachweis.     Information,  proof. 
Nachzettel.     Codicil. 
Nebenklager.    Co-plaintiff,  joint  plaintiff. 
Nichtig.     Void. 

Nichtigkeit.     Nullity,  invalidity. 
Nicht  rechtsfahiger  verein.     Unincorporated  society. 
Niederlassungsrecht.     Law  of  domicil. 
Niessbrauch.     Usufruct. 
Niessbrauchcr.     Usufructary. 
Nominalaktie.     Personal  share. 
Notar.     Notary. 

Notarielle  Beurkunduug.     Authentication  by  public  act. 
Nothafen.     Port  of  refuge . 
Notigung.     Duress. 

Nbtwehr.     Necessary  defense;  self-defense. 
Notwendige  Hcdingung.     Necessary  condition. 
Notzucht.     Rape. 
Nutzen.     Benefit,  profit. 
Nutznicsser.     Cestui  que  trust,  beneficiary. 
Nutzungen.     Profits,  emoluments. 
Niitzungspfandrecht.     Antichresis. 
Oberlandesgericht.     Court  of  appeal,   having   appellate   jurisdiction   in 

certain  cases  over  the  Landgericht  (superior  court  1,   highest  court  of 

a  State;  the  court  immediately  below  the  Reichsgericht  at  Leipzig. 
Obcrvcrwaltungsgcricht.     Highest  administrative  court. 
Obligatorischer  Vertrag.    Obligatory  agreement. 
Obligatorisches  Recht.     Obligatory  right. 
Obmann.     Foreman  (of  a  jury). 
Offenc   Handclsgescllschaft.     A   mercantile    partnership  with  unlimited 

liability  for  all  the  partners. 

Offentlicfa  Beglaubigt.     Publicly  attested. 

Offentliche  glaube  des  grundbuchs.     Public  faith  "f  the  land  register. 

Offentliche  versteigerung.     Public  auction. 

ohne  rechtlichen  Gnmd.     Without  a  sufficient  legal  ground. 

Ordnung.      Rule,  regulation,  order. 

<  trtsgebrauche      Local  customs. 

Pachtvertrag.     Usufructary  lease. 

Pachtzi  it.      'firm  of  a  lease. 

Pandektenlehrbucher.    Systematic  books  on  modernized  Roman  law. 
Partei.     Party  (to  an  action  at  law). 
Partikularrecht.     Local  law. 
Patentgesetz.     Patent  law. 

Pcrsonenstandsgesctz.     Registration  of  personal  status  act  (births,  deaths, 
marriages,  etc.). 


204  GUIDE   TO   THE   LAW   OF  GERMANY 

Personlich  haftender  Gesellschafter.     Partners  who  are  personally  liable. 

Pfand.     Pledged  object. 

Pfandglaubiger.     Pledgee. 

Pfandleiher.     Pawnbroker. 

Pfandmissbrauch.  Misappropriation  of  articles  pledged  with  a  pawn- 
broker or  other  pledgee. 

Pfandrecht.     [Right  of]  pledge. 

Pfandung.     Seizure  of  pledged  property  by  an  execution  creditor. 

Pfandung  und  Uberweisung.  Attachment  and  assignment,  a  process 
of  enforcing  judgment  which  corresponds  to  obtaining  a  garnishee 
order. 

Pflegebefohlener.     Ward,  charge. 

Pflegebestellung.     Appointment  of  a  guardian  or  trustee. 

Pflegeeltern.     Foster  parents. 

Pfleger.     Curator. 

Pflichtteil.     Compulsory  portion  (of  an  inheritance). 

Pflichtteilsberechtigter.     Compulsory  beneficiary. 

Police.     Policy  of  insurance. 

Polizeiaufsicht.     Police  supervision. 

Privatklager.     Private  accuser. 

Prokura.     Power  of  procuration. 

Provision.     Commission,  fee. 

Prozess.     Cause,  action  at  law,  legal  proceeding.   " 

Quittung.     Receipt. 

Rangordnung  der  pfandrechte.     Order  of  preference  of  pledges. 

Raub.     Robbery. 

Reallast.     Perpetual  charge  [on  land]. 

Rechtsanwalt.     Attorney-at-law. 

Rechtsanwendung.     The  application  of  law  by  the  judge. 

Rechtsencyclopadie.     Legal  encyclopedia,  juristic  survey. 

Rechtsfalle.     Cases. 

Rechtsgang.     Legal  procedure. 

Rechtsgebiete.     Jurisdiction,  fields  for  legal  action. 

Rechtsgeschaft.  A  manifestation  of  the  human  will  intended  to  create, 
transfer,  or  extinguish  a  right  recognized  by  law;  juristic  act. 

Rcchtsgeschichte .     Legal  history. 

Rechtshangigkeit.     Pendency  of  action. 

Rechtshilfe.     Judicial  assistance  in  the  administration  of  justice. 

Rechtslehre,  allgemeine.     General  theory  of  law. 

Rechtsmittel.     Legal  remedy,  legal  means  of  redress. 

Rcchtspflege.     Administration  of  justice. 

Rechtsprechung.     Jurisprudence,  court  decisions. 

Rechtsquellen.     Sources  of  law. 

Rechtsspruch .     Sentence,  judgment,  verdict,  adjudication. 

Rechtsstreit.     Cause,  Action  at  law. 

Rechtsverhaltniss.     Legal  relation  or  position. 

Rechtswidrig.     LTnlawful. 

Rechtswissenschaft.     Legal  science,  jurisprudence. 


GLOSSARY  205 

Registerhafen.     Home  port. 

Rcichsanwalt.     District  attorney,  public  prosecutor. 

Reichsgericht.     Supreme  Court  of  the  German  Empire  at  Leipzig. 

Reichsgesetz.     Federal  or  imperial  law. 

Reichshaftpflichtgesetz.     Employers'  Liability  Act 

Reichsversicherungsamt.     Imperial  Insurance  Office. 

Reichsversicherungsordnung.     Workmen's  Insurance  Code. 

Rentengtiter.     Perpetual  rent  charged  on  each  separate  parcel. 

Rentenschuld.     Annuity  charge. 

Respekttag.     Day  of  grace. 

Revision.     Appeal,  review,  new  trial. 

Revisionsschrift.     Printed  case  on  appeal. 

Rhcder  u.  Rhederei.     Owner  and  co-owners  of  vessels. 

Rhederei.     Common  ownership  of  ships;  shipowners'  company. 

Riickfall.     Reversion,  devolution,  escheat. 

Riickversicherung.     Reinsurance. 

Riickwechsel.     Return  draft,  re-exchange. 

Rtickverweisung.     Renvoi. 

Sachbeschadigung.     Injury  to  property. 

Sachen.     Things. 

Sacheninbegriff .     Aggregate  of  things. 

Sachleihe.     Gratuitous  loan. 

Sachverstandiger.     Expert. 

Sammlung  von  Rechtspriiche.     Reports. 

Schadenersatz.     Damages,  Compensation. 

Schatz.     Treasure  trove. 

Schenkung.     Gift. 

Schenkung  unter  Auflage.     Gift  subject  to  a  burden. 

Schiedsrichter.     Arbitrator. 

Schiedspruch.     Arbitral  award,  decision,  decree. 

Schiffahrt.     Navigation,  shipping. 

Schiller.     Master  (of  a  vessel). 

Schiifsbesatzung.     Ship's  company,  crew. 

Schiffszubehor.     Ship's  accessories  and  appurtenances. 

Schlagerei.     Affray,  assault. 

Schlepplohn.     Towage. 

Schliisselgewalt.     "Powerof  the  keys"  (Power  of  the  wife  to  make  eon- 
tract  binding  on  the  husband). 

Schlussvortrage.     Closing  arguments. 

Schlusszettel.     Bought  and  sold  note 

Schmahschrift.     Libel. 

Schoffengericht.     Court  of  inferior  jurisdiction  having  one  professional 
and  two  lay  judges  or  assessors. 

Schfiffenrichter.     Lay  judge  or  lay  assessor  in  the  Schfiffengericht. 

Schuld.      Debt  (act  of  performance  due  from  one  person  I"  another). 

S. -huldanerkenntniss.     Acknowledgment   of   debt,  abstract  acknowledg- 
ment. 

Schuldforderung.    Claim,  demand 


206        GUIDE  TO  THE  LAW  OF  GERMANY 

Schuldner.     Debtor. 

Schuldner-verzug.     Debtor's  delay,  or  failure  to  perform  his  promise. 

Schuldrecht.     Law  of  obligations. 

Schuldsache.     Action  for  debt. 

Schuldschein.     Acknowledgment  of  a  debt,  bond. 

Sehuldubernahme.     Assumption  of  an. obligation. 

Schuldverhaltniss.     Obligatory  relation. 

Schuldverpflichtung.     Liability,  obligation. 

Schuldverschreibung.     Bond,  note  of  hand. 

Schuldverschreibung  auf  den  Inhaber.     Obligation  to  bearer  or  holder. 

Schuldversprechen.     Promise  of  debt,  abstract  promise. 

Schuligerklarung.     Conviction. 

Schurfrecht.     Right  of  search. 

Schwurgericht.     Jury  court,  court  of  assizes. 

Seenoth.     Distress  at  sea. 

Seeraub.     Piracy. 

Seerecht.     Maritime  law,  shipping,  admiralty. 

Seetriftige  Giiter.     Wreckage  or  goods  taken  out  of  an  abandoned  ship. 

Seeuntuchtigkeit.     Unseaworthiness. 

Selbsthilfe.     Self-help. 

Selbstschuldner.     Principal  debtor. 

Selbstverteidigung.     Self-defense. 

Sicherheit.     Security. 

Sicherheitshypothek.     Cautionary  hypothecary  charge. 

Sicherheitsleistung.     Furnishing  of  sureties. 

Sicherheitsubereignung.     Transfer  of  ownership  by  way  of  security. 

Sicherungshypothek.     Cautionary  hypotheca. 

Solawechsel.     Promissory  note. 

Sondergut.     Separate  property  of  spouses,  which  is  non-privileged. 

Sorgfalt.     Diligence. 

Spediteur.     Forwarding  agent. 

Speditionsgeschaft.     Forwarding  agency. 

Staatsangehorigkeit.     Nationality. 

Staatsanwalt.     District  attorney;  public  prosecutor. 

Staatsrecht.     Public  law'. 

Stadt.     City,  municipality. 

Stadtische.     Municipal. 

Standesbeamter.     Registrar. 

Standesmassiger  Unterhalt.     Maintenance  suitable  to  the  station  in  life. 

Steckbrief.     Order  of  arrest,  warrant. 

Stellvertretung.     Representation. 

Stiftung.     Foundation. 

Stiftungsurkunde.     Act  of  foundation. 

Stille  Gesellschaft.     Dormant  partnership. 

Stoning.     Nuisance,  disturbance,  infringement,  encroachment. 

Strafbefehl.     Order  to  inflict  fine  or  punishment. 

Strafbescheid.     Penal  sentence  by  administrative  authorities. 


GLOSSARY  207 

Strafe.     Penalty. 

Straf gesetzbuch .     Penal  Code. 

Strafkammer.     Criminal  court. 

Strafprocess.     Criminal  procedure. 

Strafsachen.     Criminal  cases  or  matters. 

Strafvollstreckung.     Infliction  of  punishment,  execution  of  a  sentence. 

Strafvollziehung.     Infliction  of  punishment,  execution  of  a  sentence. 

Strafvollzug.     Infliction  of  punishment,  execution  of  a  sentence. 

Strandtriftige  Giiter.     Wreckage  and  goods  saved  from  stranded  ships  or 
found  on  the  beach. 

Strandung.     Stranding. 

Strandungsordnung.     Statutory     requirements    as    to    notification     of 
wreckage  of  a  vessel. 

Strassenrecht.     Right  of  way. 

Streitverkiindung.     Interpleader. 

Stiickgiiter.     Miscellaneous  parcels,  mixed  cargo. 

Summarisches  Verf.ihreu.     Summary  process. 

Tarifvertrag.     Collective  labor  contract. 

Tatsachlichc  Gewalt.     Actual  control. 

Taxirte  Police.     Valued  policy. 

Teilbesitz.      Part  possession. 

Teilung.     Partition. 

Termin.     Term-day,  return  day,  trial  day. 

Testament.     Will. 

Testamentsvollstrecker.     Executor  of  a  will. 

Thierqualerei.     Cruelty  to  animals. 

Todeserklarung.     Declaration  of  death. 

Todesstrafe.     Death  sentence  or  punishment  of  death. 

Trassant.     Drawer. 

Trattat.     Drawee. 

Tratte.     Draft,  bill  of  exchange. 

Treu  und  Glauben.     Good  faith. 
Irene  Hand.     Trust. 

Trim  ksucht.      Dipsomania 

I  Mr  Nachrede.     Malicious  slander. 

Ueberliegezeit.     Demurrage. 

Uebertrctung.     Minor  offense. 

Unbcwcgliche  Sachen.     Immovables. 

Uneheliches  Kind.      Illegitimate  child. 

Uneigentliche  Bedingung.     Unreal  condition  ("not  actually  a  condition). 

I'nfallvcrsicherung.     Accident  insurance. 

Ungerechtfertigtc    Bereicherung.       Unjustified    benefit,    unjust   enrich- 
ment. 
1  nlauteren  Wettbewerb.     Unfair  competition. 

Unmittelbarer  Besitz.     Direct  possession 
Unmogliche  Bedingung.     Impossible  condition. 

Unterbrechung.      Interruption  (of  statute  of  limitations). 


208        GUIDE  TO  THE  LAW  OF  GERMANY 

Unterbreehung  der  Verjahrung.     Interruption  of  the  prescription. 

Unterdriicken  von  urkunden.  Suppression  of  an  instrument  or  docu- 
ment. 

Unterhaltspflicht.     Mutual  rights  and  duties  as  to  maintenance. 

Unternehmer.     Contractor. 

Unterschlagung.     Embezzlement. 

Unterstutzungwohnsitz.     Place  of  poor  relief,  domicil. 

Untersuchung.     Inquest. 

Untreue.     Breach  of  trust. 

Unverziiglich.     Without  (culpable)  delay. 

Unwesentlicher  Bestandteil.     Non-essential  component  part. 

Unwirksam.     Inoperative,  invalid,  ineffective,  of  no  effect. 

Unziichtige  Handlung.     Lascivious  or  obscene  conduct. 

Unziichtige  Schriften.     Obscene  literature. 

Urheberrecht.     Author's  right,  copyright  (law). 

Urkunde.     Instrument,  document. 

Urkundenfalschung.     Forgeiy  of  instruments  and  documents. 

Urteil.     Judgment,  opinion. 

Urtheilsgriinde.     Grounds  of  decision. 

Yerantwortlichkeit.     Responsibility,  accountability. 

Verausserung.     Alienation. 

Verausserungsverbot.     Restraint  on  alienation. 

Verbesserungsanstalt.     Reformatoiy. 

Yerbrechen.     Felony. 

Yerbindung.     Incorporation. 

Verbotene  Eigenmacht.     Unlawful  interference. 

Yerbrauchbare  Sachen.     Consumable  things. 

Verein.     LTnion. 

Yerein,  eingetragener.     Registered  society. 

Vereih,  nicht  rechtsfahiger.     Unincorporated  society. 

Yereinigung.     Association. 

\'ereitelung  der  zwangsvollstreckung.  Rendering  judgment  and  execu- 
tion null  (by  alienating  or  secreting  property  with  intent  to  defraud 
creditors). 

Yerfahren  (vorbereitendes).     Preliminary  proceeding. 

Yerfalsehung  von  Lebensmitteln.     Adulteration  of  food. 

Verfassungsrecht.     Constitutional  law. 

Yerfrachter.     Owner  of  a  vessel  chartered. 

Yerfiigung.     Disposition;  order,  ordinance,  decree. 

Yerfiigung  von  hoher  Hand.     Arrest  of  princes  or  rulers  (Admiralty). 

Yerfiigung  von  Todeswegen.  Disposition  mortis  causa,  disposition  oper- 
ative on  death. 

Yerfugungsrecht.     Right  of  disposal  of  something. 

Yerfuhrung.     Seduction. 

Yergehen.     Misdemeanor. 

Yergiftung.      Poisoning. 

Yergleich.     Compromise,  composition. 


GLOSSARY  209 

Verhaftung.     Arrest. 

Verhandlung.    Negotiation,  proceeding,  trial,  hearing. 

Verheimlichung.    Concealment 

Yerhor.     Examination. 

Verjahrung.     Outlawry  of  a  right,  prescription. 
Yerkehrsbedlirfniss.     Ordinary  intercourse. 
Yerkiindung.     Pronouncement  (of  judgment  I. 

Ycrladungsschein.     Bill  of  lading. 

Yerlagsrecht.     Law  of  publishers. 

Yerleihung.     Grant. 

Yerleumdung.     Defamation. 

\'erlobniss.     Betrothal. 

Yermachtniss.     Legacy. 

Yermachtnissnehmer.     Legatee. 

Yermengung.     Blending  together  or  confusion  of  goods. 

Yermischung.     Mixing  together,  or  confusion  of  goods. 

Yermogensverwaltung.     Management  of  property. 

Vermogensverwaltung  des  Inhabers  der  elterlichen  Gewalt.  Manage- 
ment of  the  property  of  decedent  by  the  person  having  the  paternal 
power. 

Ycrmogensvorteil.     Pecuniary  advantage. 

Yernehmungstheorie.  Doctrine  of  perception,  that  (in  contract)  receipt 
of  the  message  is  insufficient  unless  its  contents  have  actually  come 
to  the  knowledge  of  the  addressee. 

Yerdffenllichung.     Publication,  promulgation. 

Yerpachtung.     Leasing. 

Ycrpfander.     Pledger. 

Verpfandung.     Pledge,  mortgage. 

Ycrplliehtungsschcin,  kaufmannischer.  Mercantile  promise  to  pay  or 
deliver. 

Ycrsaumnisurteil.     Judgment  by  default. 

Yerschollene.     Untraceable  persons. 

Ycrschwagern.     To  become  related  by  marriage. 

Yerschwagcrt.     Related  by  marriage 

Yerschwendung.     Prodigality. 

Versicherte,  der.     The  insured. 

Versicherung.     Insurance;  affirmation. 

Yersicherungsnehmcr,  der.     The  insurance  taker. 

Versicherungsverein  auf  Gegenseitigkeit      Mutual  insurance  society. 

Versuch.     Attempt. 

Verteidigung.     Defense. 

\"ertrag.     Agreement,  contract,  treaty. 

Ycrtragmassiges  Guterrecht.  Contractual  regime  of  matrimonial 
property. 

Vertragserbe.     Contractual  heir. 

Yertr.uu ■nsin.inn.     Trustee;  Men  who  prepare  the  jury  lists. 

29774°— " 14 


2IO  GUIDE   TO   THE    LAW   OF  GERMANY 

Vertreibung.     Ejectment. 

Vertretbare  Sachen.     Fungible  things. 

Vertreter.     Agent. 

Vertreter,  gesetzlicher.     Statutory  agent. 

\"ertretung.     Agency. 

Verwahrungsvertrag.     Agreement  for  the  custody  of  a  movable  thing. 

Verwaltungsrecht.     Administrative  law. 

Yerwandt,  in  der  Seiteulinie.     Kindred  in  the  collateral  line. 

Yerwandte  in  der  graden  Linie.     Kindred  in  the  direct  line. 

Verweisung.     Expulsion,  banishment;  committal  for  trial. 

Yerwirkung.     Foreclosure,  forfeiture. 

Yerzeiehnis.     Catalogue,  table,  register,  index. 

Verzicht.     Renunciation,  relinquishment,  forbearance. 

Yerzichtleistung.     Renunciation,  relinquishment,  forbearance. 

Yerzug.     Delay. 

Yolksversammlung.     National  assembly. 

Volkswirtschaft.     Political  economy. 

Vollkaufmann.     True  mercantile  trader  in  the  full  sense  of  the  word. 

Y'ollmacht.     Power  of  agency,  power  of  attorney. 

Vollstreckung.     Execution. 

Yollstreckungsbefehl.     Writ  of  execution. 

Voraus.     Preferential  benefit. 

Vorausvermachtniss.     Preferential  legacy. 

Yorbehaltsgut.     Privileged  separate  property  of  spouses. 

Yorerbe.     Limited  heir,  or  heir  who  takes  first. 

Yorfiihrungsbefehl.     Subpoena,  warrant  to  appear  before  the  court. 

Vbrkauf.     Right  of  preemption. 

Yorlaufige  entlassung.     Provisional  release. 

Yorlaufige  ergreifung.     Preliminary  arrest  or  apprehension. 

Vorlaufiger  Yormund.     Interim  guardian. 

Vormerkung.     Caution. 

\'ormund.     Guardian. 

Vbrsatz.     Wilful  default. 

\. irs.it/lich.     Wilfully,  with  intent. 

Vorschlagsliste.     List  of  proposed  jurors. 

Yorschuss.     Advancement. 

Yorstand.     Directorate. 

Voruntersuchung.     Preliminary  inquest  or  examination. 

Yorverfahren.     Preliminary  proceedings. 

Wahnsinn.     Lunacy. 

Wandelung.     Rescission  or  cancellation  of  a  sale. 

Warenzeichen.     Trademarks. 

Wechsel.     Bill  of  exchange. 

Wechselnehmer.     Payee. 

Wechselordnung.     Bills  of  Exchange  Act. 

Wechselrecht.     Law  of  exchange. 

Wegnahmerecht.     Justollendi. 

Weiterverweisung.     Renvoi;  transmission  to  a  third  jurisdiction. 


GLOSSARY  211 

Werkvertrag.     Agreement  for  work. 

Wertpapiere,     Securities,  negotiable  or  non-negotiable  instruments. 

Wesentlicher  Bestandteil.     Essential  component  part. 

Wichtiger  Grund.     Cogent  ground. 

Widerkauf.     Redemption. 

Widernaturliche  Unzueht.     Unnatural  obscenity,  sodomy,  pederasty. 

Widerruf.     Recall,  revocation. 

Widerspruch.     Contradiction,  objection. 

Wiederaufnahme  des  Hauptverfahrens.     New  trial. 

Wiederherstellung  der  ehelichen  Gemeinschaft.  Restitution  of  the  con 
jugal  community. 

Wilddieberei.     Poaching. 

Willenscrklarung.     Declaration  of  intention. 

Willenstheorie.     Real  intention. 

Wirtschaftliche.     Economic. 

Wirtschaftliches  Grundstiick.     Agricultural  land. 

Wittum.      Dower,  settlement  in  jointure. 

Wohnsitz      Domicil. 

Wucher.     Usury. 

Zahlungsunfahigkeit.     Bankruptcy. 

Zeitlohn.     Time  wage. 

Zeuge.     Witness. 

Zeugnis.     Testimony. 

Zins.     Interest,  ground-rent. 

Ziyilprozess.     Civil  action. 

V.w  ilprozessordnung.     Code  of  ciyil  procedure. 

Zubehdr.     Accessories. 

Zuehthaus.     Penitentiary. 

Zuchthausstrafe.      Imprisonment  in  a  penitentiary. 

Zueignung.     Appropriation. 

Zug  um  Zug.     Perform  contemporaneously, 

Zugehorig.     Appurtenant. 

Zuhalterei.    Concubin  i  • 

Zurfickbehaltungsrecht.    [Right  of]  lien. 

Zurucknahme.     Ademption  (of  a  legacy). 

Zusammenstoss.    Collision. 

Zust&ndigkeit.     Competence,  cognizance,  jurisdiction. 

Zustellung.     Insinuation;  delivery,  conveyance. 

Zustimmung.     Assent,  consent. 

Zwang.     Duress,  force. 

Zwangseinstellung.     Coercion. 

Zwangserziehung.     Compulsory  education. 

Zwangsversteigerung.  Sequestration  of  property  in  execution  proceed- 
ings. 

Zwangsverwaltung.     Forced  sale  in  execution  proceedings. 

Zwangsvollstreckung.     Execution  (on  property);  distraint. 

Zweikampf.     Duel. 

Zwischenspediteur.     Sub-agent. 


INDEX 


Abandonment  oJ  things    {Bk.  3,  Civ.  Codi 

7a  ff  .  81 
Abraham.  111. 

Accident  insurance,  119  ff.,  122  ff.,  132  flf. 
A.  cidents,  12.;. 
A<  liillcs.  60. 
Acknowledgement  of  debts  (Bk    2,  Civ,  Code),  64, 

72  ff..  80. 

Acquisition  I  Bk    j,  Civ   Code),  f>4,  -2  ff.,  81. 

Act  of  state.  1S3. 

Actions,  adniinisti  ai 

A<  tions  at  law,  1  1  \, 

Actors.  127.  136. 

Adickes,  147.  170. 

Adjoining  owners  (Bk.  3,  In    Code),  64,  7;  ff.,  81. 

Administration  of  decedents'  estates  (Bk.  5,  Civ. 

■ 
Administrative  law,  171,  178  ff. 
Administrative  laws.  172. 
Administratoi    Bk.      Civ.  Code),  66.  72  ff..  86;  151. 

Admiralty,  108. 

Adoption  (Bk  4,  Civ.  .  85. 

Affoltcr.  80. 

Agency  (Ilk    1,  Ci\    I  1    1  ;a  (T. 

(Bk.  1.  Com  i  od<     Bl        I  om   (  ode),  99ft. 
Agricultur.il  .in.i  forestry  insurance,  124, 

'  1  ural  and  forest  lands,  67. 
Agriculture.  136. 

Rcchtsencyc,  21. 

Cours  de  di    nat 
Albrechl 
Albrecht,  P.,  83. 
Alcxander-Eatz,  104. 

[ntrod.  Act,  t  ■  . .  148. 

AUfeld 

Gcwcrbl.  rechtsschutz,  96. 

Strafrecht,  156. 

Urhtl  11 
AUgemeine  bibliographic,  1 1 
Allgcnit  ini  reel 
Alimaiui,  Paul,  :■>,  173. 
American  Inst.  Crim.  Law,  168. 
Amira,  50. 
;.  25. 


Anger.  1 

Animals  (Bk.  3.  Civ.  Code).  64.  7;  ff  .  Hi ;  119  ff. 

Annalen  d.  dcut.  rcichs,  j.85. 

Annual  Bull,  of  the  Coinp.  Law  Bur.,  12. 

Annuities  I  Bk      .  Ch    Code),  04.  72  ff  .  So. 

Annuity  charges  I  Bk    j,  Cn    Code),  65,  72  ff..  81. 

Anschutz,  172. 

Appeal.  141. 

Appclius.  127 

Application  of  law,  36,  80,  147. 

Apprentices  (Bk.  1,  Com  Code),  99  ff.,  137. 

Appropriation  of  property.  (Bk.  3,  Civ   Code),  64, 

7;  ff..  Si 
Appurtenances  |  Bk    1.  Civ.  Code),  62,  72  ff. 
Arbitration.  1  \<>.  138,  141.  148. 
Architects,  136. 

Archiv  d.  allg.  deut  handt-lsrechts,  88. 
Archiv  f.  burg,  recht.  13,  ;_ 
Archiv  f.  d.  civ.  praxis.  150. 
Archiv  f.  offent.  recht,  184. 
Archiv  f.  rechts-  philosophie,  40. 
Archiv  f.  reichsversicherung,  1.-7 
Archiv  f.  soz.  gesctzgebung,  185. 
Archiv  1  strafrecht,  157. 
Army,  163,  tji. 
Arndt,  [72, 
Arndts,  13. 22. 

Artistic  copyright  (formative  .iris),  91. 
Artists.  136. 
Aschaffenburg,  167,  168 
Aschrott,  107,  170. 
Assignment  I  Bk     ,Ch    t  ode  I,  63,  72  ff.,  So. 

men!  in  fraud  ol  crcditoi  ■ 
As  km  iation  and  public  meeting,  right  1 
Associations  '  Bk    1 ,  Civ.  Code),  62,    ■  IT.,  77;  151. 
An. i.  hnxent  I  Bk     .  C  iv  Code  .  6a,  72  ff.,  Ro. 
Attorneys-at-law,  136,  150. 

Attorneys'  fees,  144,  149. 

Authentication  of  legal  instrument 
Authoi  to  ff. 

Automobiles,  107. 

e,  ioh  ff.,  hi 

Bat  hem.  61 

Baden  landrccht.  52. 

Bad  I  Bk.  r,  Civ.  Code),  6a,  ;a  ff 


214 


INDEX 


Bailments  (Bk.  2,  Civ.  Code),  63,  72  ff.,  80. 
Baldwin,  142. 
Bankruptcy,  116  ff.,  141. 
Banks  and  banking,  115. 
Bar,  von,  153,  16S,  188. 
Bar  association,  186. 
Barazetti,  69. 
Barbarian  laws,  42,  47,  48. 
Barbers,  136. 
Barre,  71. 
Barrows,  155. 
Bartels,  181. 
Barth,  12. 
Baum,  96. 
Baumgarten,  118. 
Becher,  68. 
Bcchmann,  80. 
Becker,  14,  162. 
Behrend,  48,  102. 
Beitrage  z.  kolonialpolitik,  178. 
Bekker,  40,  188. 
Beling,  19,  162,  169. 
Below,  53. 
Bcnsheimer,  15. 

Bequests  (Bk.  5,  Civ.  Code),  66,  72  ff.,  86. 
Berner,  157. 
Berahardi,  76. 
Bernstein,  115. 
Berolzheimer,  40. 
Kulturstufe,  36. 
Strafrechtsphilosophie,  169. 
Studien,  37. 
Beseler,  51,  iSS. 

Betrothal  (Bk.  4.  Civ.  Code),  65.  72  ff.,  85. 
Beyerle.  45. 
Bibliography,  11  ff. 
Bibliography  of  legal  science,  12. 
Bibliography  of  social  science,  12. 
Bibliothcca  juridica,  11,  13. 
Isibliothek  d.  offent.  rechts,  174. 
Bierling,  39. 

Bills  of  exchange,  50,  112  ff. 
Bills  of  lading,  106. 
Binder,  86. 
Binding: 

Fcstgabe,  188. 
Norrnen,  26, 
Strafprozess,  161. 
Strafrecht,  156. 

Systematisches  handbuch,  43,  49,  50,  55,  77,  no, 
112,  116,  120,  161,  1-5,  177,  179. 
Birkmeyer,  13.  165. 

Beitragez.  kritik,  167. 
Encyklopadie,  24. 
Kritische  beitrage,  167. 
Strafprozess,  161. 
Strafrecht,  167. 
Bismarck,  122. 


Bittner.  180. 

Bliss,  135. 

Block,  180. 

Blume,  85. 

Bluntschli,  13,  176,  188. 

BIyth,  82. 

Bohm,  87,  148. 

Bolland,  28. 

Bondi,  101. 

Borchard,  12. 

Bornhak,  175. 

Boschau,  85. 

Bottomry.  108  ft. 

Boundaries  (Bk.  3,  Civ.  Code),  64,  72  ff.,  81. 

Boyens,  18,  no 

Brauchitsch,  180. 

Braun,  186. 

Brentano,  186. 

Brickdale,  81. 

Brie,  1S2. 

Brinz.  55. 

Brodmann.  no. 

Brokerage  and  brokers: 

(Bk.  2,  Civ.  Code).  63,  72  ff..  So. 
(Bk.  1.  Com.  Code),  99  ff. 

Brooks,  i2§,  132. 

Brown  (Savighy),  51- 

Bruncken,  165. 

Brunn.  127. 

Brunner,  188. 

Festgabe,  188. 
Forschungen,  43. 
Rechtsgeschichte,  43. 
Schwurgerichte,  162. 

Bruns,  35,  55. 

Brutt.  33- 

Bryce,  10,  32. 

Biicher.  185, 

Buchka,  61,  71,  96. 

Building  rights,   heritable  (Bk.  3,  Civ.  Code).  05. 
72  ff.,  81. 

Building  trades,  136. 

Building  trades  insurance,  133. 

Bundesgesetzblatt,  14. 

Burgc,  84. 

Burgess,  171.  i74> 

Burlage,  162. 

Burns,  82; 

Busch,  88. 

Business  corporations  (Bk.  2.  Com.  Code),  99  ff. 

Business  or  trade  secrets,  95. 

Byles,  112. 

Cahn,  176. 

Canciani,  47. 

Canon  law,  176. 

Cantor,  93. 

Capacity  (Bk.  1.  Civ.  Code),  62,  72  ff. 
(Introd.  Act,  Civ.  Code),  68. 


INDEX 


-IS 


Carolina  Code,  153. 

Carpcnticr.  100. 

Carriers  I  lik  3,  Com.  Code),  99  ff. ,  106. 

Caspar,  134- 

Cattle  insurance,  119  ff. 

Centxalblatt  f.  rechl  13. 

Charges  on  land,   perpetual  (Bk.  3,  Civ.  Code),  65, 

73  ff..  Si 
Chartering,  108. 
Cheques.  112,  113. 
Child  labor,  136.  137. 
Church,  17;.  176. 
Citizenship.  176. 
Civil  Code: 

Component  elements,  46  ff. 

Contents.  6a. 

General  literature 
Commentaries,  74. 
Treatises,  74  ff. 

Histor 

Individual  parts  of  Code,  77  ff. 

Introductory  Act,  07. 

Legislative  histon 

Related  subjects.  77  ff. 

Translation--,  j 
Civil  procedure.  140  ff. 
Civil  prui  cdurc  reform.  147. 
Claes,  139. 

■    I  ■-  tool  of  crim   l;i'.' 
Clemenl 

«.  ]•  ri.  s(BI    t,(  'in  Code),  99  ft"  ,  137,  136. 
Codification,  9,  jo,  56,  97,  133,  140.  153,  1 
Collective  labor  contrail    1    , 
Colonial  law,  177. 

Canute'  dc  legislation  etrangerc.  73. 
Commandite company  >  Bk.  2. Com. Code), 99 ff..  104. 
Comnianditestockcompany(Bk.  2, Com.  Code      .-,m 
Commerce.  172. 
Commercial  Code: 

Content 

'  rem  ml  literature. 99: 
Commentaries.  101. 
Treatises.  101. 

Histoi 

Literature  of  individual  parts  of  Code.  103  ff. 
Cororncn  ial  1  dui  ts,  1  1 
Commercial  Is 

nerctal  transact Bl       Com  Code),  99  ff. 

Commission  business  (Bk.  3,  Com  Code),  99  ff. 
(  '>iniuon  carriers  (Bk.  3.  Corn   Code  1.  99  ff.,  106. 
Community  of  goods,  income,  profits,  matrio 

'  Bk    |,  Civ  Cod-   ,6s. 
Community  property  ( Bk.  ..Civ  Code),  64,  7a  ff.,  so. 
Componii      Bl       *.  om.  Code),  99  ff- 
:  al  h  e  L.i1--.  Hull-  tin,  1 
n  11    1!  ion  for  unjust  arrest  and  i  onviction, 
mum  1  1  Bk.    ,  Civ,  Code*.  64,  72  ff.,  80. 
Compulsory  insurance,  123  ff. 
Conditions  |  Ilk.  1,  Civ.  CodeX  6a,  72  ff. 


Conflict  of  laws  (Introd.  Act, Cii    (  0 d     ,68,69,  i47« 

148. 
Confusion  of  goods  (Bk.  5,  Civ  Code),  64,  72  ff.,  81. 
Conrad.  1 14.  173. 
Constitutio  Criminalis  Bamberg  en  sis.  153. 

Carolina.  1 
Constitutional  law.  171  ff.,  174. 
Construction  and  interpretation,  36,  80,  147. 
Consular  jurisdiction,  148,  182 
Continental  legal  history  serii 
Contract  for  work  and  services  (Bk.  a,  Civ. Code).  63, 

72  ff..  80. 
Contracts: 

(Bk.  1,  Civ.  Code).  6;.  72  ff. 

(Bk.  2.  Civ.  Code),  62,  72  ff..  So. 
Contractual  regime  of   matrimonial  property  (Bk. 

4.  Civ.  Code).  65.  72  ff..  85. 
Com  1  yance  of  goods,  106. 
Conveyancing,  151,  152. 
Cook.  143. 

Cooperative  societies,  105,  1.2. 
Co-ownership  (Bk.  3.  Civ.  Code*.  64,  72  ff.,  81. 
Copinger,  90. 
Copyright,  90  ff. 
Corporations: 

(Bk.  i.  Civ.  Code).  6a,  72  ff. 

t  Introd.  Act.  Civ.  Code),  69 

(Bk.  a,  Com.  Code).  99  ff. 
■ 

B.  G.  B.,  75- 

Handelsrecbt,  102. 

,  i.  149. 
Court  costs,  144,  149. 
Court  officers,  149. 
Court  reports,  15  ff. 
Courts,  15,  i4r. 

Courts,  administrative,  i'vj,  1S1. 
O  iur1  3,  military,  164. 
Creditors'  suits,  116. 
Cretschmar.  1  5. 

Criminal  anthropology,  168,  169. 
Criminal  courts,  142,  158. 
Criminal  law  , 
Criminal  law    military,  163. 

d  law  reform,  ir>4. 
Criminal  procedure.  1 
Criminal  procedure,  military,  [64, 
Criminal  procedure  reform,  164,  169. 
Criminal  psychology,  168, 
Criminology,  164  ff. 
Criticisms  of  draft  ,  Civil  Codi 

Croiue,  75. 

1  .  105.  106. 

Curatorship,  1  Bk    1  C  h    •.  ff.,  85. 

Custody  of  neg.  instruments,  115. 

'-'),  63, 
72  ff.,  80. 
Cust  rru     k>  al,  67. 
Daguin,  160. 


2l6 


INDEX 


Dahn,  27,  60. 

Damages  (Bk.  2.  Civ.  Code),  63,  72  ff.,  80;  125. 

Dannenbaum,  115. 

Danz,  79. 

Dareste,  145. 

Daude,  90,  160. 

Dawson,  128. 

Death,  registration  of,  85. 

Death  sentences,  162. 

Debtor  and  creditor  (Bk.  2,  Civ.  Code),  63.  72  ft".,  80. 

Debts,  promise  to  pay  and  acknowledgement  (Bk. 

2,  Civ.  Code),  64,  72  ft".,  80. 
Decedents'  estates  (Bk.  5,  Civ.  Code),  66,  72  ff ..  86. 
Declarations  of   intention  (Bk.   1,  Civ.    Code),  62, 

72ff. 

Deeds,  151,  152. 

Delius,  148,  181,  182. 

De  Montmorency.  31. 

Denkschrift  lib.  d.  kartellwesen,  11S. 

Deposit  (Bk.  2,  Civ.  Code),  63,  72  ff.,  81. 

Dernburg,  188, 

B.  G.  B.,  75- 

Pandekten,  54. 

Prcuss.  privatrecht,  51. 
Derschcid.  57. 
Descent,  legitimate  and  illegitimate  (Bk.  4,  Civ. 

Code),  66,  72  ff.,  85. 
Designs,  94,  151. 
Detken,  88. 

Deutsche  juristen-zeituug,  89,  m- 
Deutscher  juristentag,  18,  186. 
Deutsches  kartell-jahrbuch,  118. 
Deutsche  kolonialgesetzgebuim,  1 78. 
Deutsches  privatrecht,  49. 
Deutsches  reichsgesetzbuch  f.  Industrie,  15. 
Diefenbach,  89. 
Dictionary,  legal.  187. 
Digby,  133. 

Discovery  (Bk.  2,  Civ.  Code),  64,  72  ff.,  80. 
Dissolution  of  marriage  (Bk.  4,  Civ.  Code),  65,  72 

«..  85. 
Distress  at  sea,  108. 
Distribution: 

(Bk.  s,  Civ.  Code),  66,  72  ft".,  86. 

(Introd.  Act,  Civ.  Code),  67. 
Distribution  of  inheritance  tax,  87. 
Divorce: 

(Bk.  4,  Civ.  Code),  65,  73  ft  .  85. 

(Introd.  Act,  Civ.  Code),  68. 
Dochow,  179. 

Domestic  relations  (Bk.  4,  Civ.  Code),  65,  72  ff.,  &$. 
Domestic  servants,  67,  1  jr. 
Domicil,  184. 

Dormant  partnership  (Bk.  2,  Com.  Code),  99  ff. 
Dove,  114. 

Drafts,  Civil  Code.  57  ff.,  64. 
Drage,  154. 
Dubarle,  143. 
Dudek,  152. 


Diiringcr,  101,  103.  147- 

Duttmann,  12ft,  127,  134. 

Dyde,  28. 

Easements  (Bk.  3,  Civ.  Code),  64,  72  ff.,  81. 

Ebner,  91. 

Eccius,  88. 

Ecclesiastical  law,  176  ff. 

Eck,  76. 

Education,  172. 

Education,  legal,  iS  ff . 

Educators,  136. 

Eger: 

Eisenbahn.  entscheidungen,  107. 

Eiscnbahnverkehr,  106,  107. 

Enteignung,  83. 

Frachtrecht,  106. 

Haftpflichtgesetz,  123. 

UnterstiitzungSAohnsitz,  184. 

Verkehr  mit  kraftfahrzeugen,  107. 
Ehrenberg,  S9,  120. 
Eichheim,  163. 
Eichholz,  70. 
Eichhorn,  87. 

Eisenbahnrechtliche  entscheidungen,  107. 
Elementary  law,  21. 
Elster,  140,  172. 
Kmcry,  131- 

Emineut  domain,  67,  83. 
Employees,  136. 
Employers'  liability,  122  ff. 
Encyclopedia,  legal,  21  ff. 
Endemann.  74. 

Endowments  (Bk.  1,  Civ.  Code).  62,  72  ff. 
Engelmann,  A.,  76,  146. 
Engelmann,  \V.  (Bib.  jur.),  11. 
Enneccerus,  61,  75. 

Enrichment,  unjust  (Bk.  2,  Civ.  Code),  (14,  72  ff.,  80. 
Enslin,  n. 

Entscheidungen,  15  ff. 
Entscheidungen    d.     bundesamts   f.    d.    hcimath- 

wesen,  184. 
Entscheidungen    d.    gerichtc    u.    verwaltungsbe- 

horde,  17. 
Entscheidungen  d.  reichsgerichts,  16. 
Entscheidungen  d.  rcichsmililargerichts,  164. 
Entscheidungen  d.  reichsoherhandclsgericht,  16. 
Entscheidungen  in  ang.  d.  fr.  gerichtsbarkeit.  152. 
Erichsen,  86. 
Ernst,  144,  163,  164. 
Esscr,  103. 

Estate  creditors  (Bk.  5,  Civ.  Code).  66,  72  ff.,  86. 
Estate,   debts  and   claims   (Bk.    5,  Civ.  Code),  66, 

72  ff.,S6. 
Evidence,  141  ff.,  158. 
Exchange  (Bk.  2,  Civ.  Code),  62,  72  ff.,  So. 
Exchange,  bills  of,  56,  112. 

Execution  of  will  (Bk.  5,  Civ. Code).  66,  72  ff..  S6. 
Execution  sales,  148. 
Executions,  141,  148. 


INDEX 


17 


Executors  (Bk    5,  Civ.  Code).  66.  72  ft*..  86. 

Expert 

Expropriation,  83. 

Extradition.  182. 

Factories.  122. 

Factors  (Bk.  1.  Com.  Code).  99  ff. 

Factory  workers.  136. 

Fairs.  137. 

Fairwcather,  g;. 

Falck.  si. 

Fabanann,  17.  117 

False  representations  a^  to  one's  goods,  95. 

False  weights,  measures,  etc..  95. 

Family  law  (Bk.  4.  Civ.  Code),  65.  7-'  fl  . 

Family  settlements.  67. 

Farnam.  129. 

Fedderscn.  161. 

Fees.  144,  149. 

Feist.  S7. 

Pest  gaben: 

Biiulin 

Brunncr,  188. 

Gierke,  187. 

Guterbock, 

EobJer,  97.  188. 

Laband,  174. 
Feudal  tenuri 
Feuerbach,  1 
Fichte, 

Picker,  45,  121. 
Finance,  17.-.  179. 
Finding  and  Cinder,  rights  of  (Bk.  3,  Civ.  Code),  64, 

7--  ft*..  81. 
Finger,  A  .  88.  157 
Finger,  C.  94.95- 
1  irancc.  119  ft". 

Firm  names  ( Bk.  1.  Com.  Code),  99  ft*. 
Pi  '  her,  73.  149.  150,  182. 
Pis>  u-..  183. 
Fisher.  H.  ed.  (Maitland  I,  48,  s8. 

Medieval  empire.  49. 
Fishing.  136. 
Pitting,  1 16,  145. 

Fixtures  (Bk.  1,  Cn    I  1  ■■■■         ,72  ft*. 
Fleincr,  179. 
Pleischmann,  180,  1 
Foelix,  159. 
r,  52,  82. 
ii.  71. 
Food  inspection  laws,  96. 
1  !  sale,  on  execution,  148. 

Foreign  judgments,  execution  of ,  148. 
Foreign   law,   application   of   (introd.   Act,   Civ, 

I,  68. 
Foreigners  (Introd.  Act,  Civ.  Code),  '<:,  *4&> 
Forest  laud.  67. 
Forestry.  1 16. 
Forfeiture  1  insurant  i 
Form    introd.  Ai  1.  Civ.  Code),  08. 


Form  books,  1 

Forwarding  agency  (Bk.  j,  Com,  Code),  99  fl. 

Foundations  (Bk.  1,  Civ.  Code),  62,  72  ft*. 

Frank,  155. 

Frankcl.  128. 

Fraudulent  conveyances,  116. 

Freightage,  106. 

French  law,  47. 

Freudenthal,  144. 

Freund.  20,  34.  57.  70.  168. 

Friedbcrg: 

Handelsgesctzgbg,  100. 

Kirchenrecht.  177. 
Friedensburg,  130. 
Friedlander: 

Encyclopedic.  ^3. 

Rechtsanwaltsordnung,  1  ;o. 
Friedrich.  [69. 

Fruits  and  usufruct.  62,  <>4.  7.'  ft..  81. 
Fuld,  96. 

Gaius,  Ztschr.  f.  rechtsgeschichte,  45. 
Galli,  1-7. 

Came  laws,  67. 

Gaming  contracts  (Bk.  2,  Civ.  Code).  64.  ;a  ft..  So. 

■ 

Gareis: 

Encyklopadie,  22. 

Handelsrecht,  102. 

Science  of  law,  21,  32,  46,  73. 

Kolimialrec'.il.  1  ;v 

Patent  Entsehciduiig.,  94. 

Wechselordnung,  113. 
Garner,  143. 
Gaupp,  145- 
Gebhard,  57.  '*?.  U4- 
Gemeines  recht,  47. 
General  average,  108,  m. 
Gerber,  51 
Gerhard,  120,  121. 
I  n  r.  htssaal,  Dcr,  88. 
Gerland.  to. 
Gerstmeyer,  178. 

Gcs.  deut  u  prcus.  gesetzgbgs-materurl,  14* 
Gewerbegertcht,  138. 
Gewerbl,  rechtsschutz,  97. 
Giard  &  Briere,  102,  156. 
Gierke,  175,1 

Entwurf,  60. 

Fesl    'I- 

* ieno  ht,  77. 

Political  theories,  io,  78. 

Privatrecht,  49. 

rjntersuchungeu, 

\  1 1  eine,  79. 
Gifts,  63. 
G  laser.  160. 
Glasson.  145. 

GttCist,  35,  173,  175i  180,  *8S. 
Goldman.' 


!l8 


INDEX 


Goldschmidt,  J.,  157,  166. 

Goldschmidt.  L.,  toi,  102.  103,  188. 

Goltdammer's  Archiv,  157. 

Goodnow,  17S. 

Goschen.  15. 

G6z,  ig. 

Grabowsky,  185. 

Gradenwitz,  55. 

Gray.  J.  C,  16,  53- 

Gray,  L.  H.,  130. 

Greiff,  69. 

Grimm,  51. 

Groceries,  136. 

Grolman,  158. 

Gronow,  163. 

Gross,  168,  169. 

Grotefend,  14. 

Gruchot's  Beitrage.  88. 

Grueber: 

Einfuhrung,  23. 

(Introduction,  Sohm),  52. 

ed.,  Rechtsencyklopadic,  22. 

Vorbildung,  19. 
Griinhut,  112,  185. 
Griinzel.  118. 
Griitzmann,  52. 

Guaranty  (Bk.  2,  Civ   Code),  64,  72  ff\.  So. 
Guaranty  insurance,  119. 
Guardianship  (Bk.  4,  Civ.  Code),  65,  66,  151. 
Gugel,  126. 
Guterbock,  187. 
Giithe,  Us,  149. 
Guthrie,  31. 
Gutschow,  in. 

Guttentag'sche  Sammlung,  15. 
Habermann,  127. 
Habicht,  69,  71. 
Hachenburg,  101,  105. 
Hacke,  121. 
Haenel,  175. 
Hagen,  120. 

Hague  conferences  on  private  law,  148. 
Hahn,  158. 
Hail  insurance,  119. 
Hamm,  89. 

Handbuch  d.  gesetzgebung,  15. 
Handbuch  d.  orient,  rechts,  173. 
Handbuch  d.  unfallversicherung,  133. 
Handclsgesetze  des  erdballs,  99. 
Handicraftsmen,  136. 

Handwbrterbuch  d.  staatswissenschaften,   17;. 
Hanow,  126. 

Hanscatische  gerichtszeitunii,  1  n. 
Hanseatische  rechtsprcehuug,  1 11. 
Harris,  125,  127. 
Hartmann,  165. 
Hastic: 

Kant.  27. 

Outlines,  21. 


Hastings,  37. 

Hatschek,  1S3. 

Haubold,  31,  188. 

Hayward,  30. 

Heffter,  188. 

Hegel,  28. 

Heilfron,  76. 

Hciner,  177. 

Heinitz,  89. 

Heinsheimer,  S9. 

Heirs  (Bk.  5,  Civ.  Code),  66,  67,  72  ff.t  86. 

Hellwig,  146,  160. 

Henle,  73,  155. 

Henschel,  115. 

Hergenrbther.  177 

Heritable  building  rights  (Bk.  3,  Civ.   Code),  65, 

72  ff.,  81. 
Herz,  163,  164. 
Hessels,  48. 
Heumann,  55. 
Heusler,  50. 

Heymaon,  Entwurf,  61. 
Heyne,  120. 
Higgins,  58. 
Hinrichs,  13. 
Hinschius: 

Kirchenrecht,  177. 

Personenstandsgesetz,  85. 
Hire-purchase,  Si. 
Hirschfield,  20,  68,  10;,  144. 
Hirth's  Annalen,  185. 
Historical  school,  26. 
History,  legal,  41  ff. 
Holder,  39. 

Hoffmann.  H.  E.  v.,  17S. 
Hoffmann,  U.,  88. 
Holdsworth,  53. 
Holmes,  10. 
Holtzendorfl.  1S6. 

Encyklopadie,  23,  43. 
Howard,  160,  161,  174. 
H  liber,  89. 
Hubner,  50. 
Hudson,  143. 
Hue  de  Grais: 

Gesetzgebung,  15. 

Verfassuug,  172. 
Hiittner,  11S. 
Hugo,  29,  31.  188. 

Husband  and  wife  (Bk.  4,  Civ.  Code),  65,  72  ff.,  85. 
Husik.  36. 
Huvelin,  101. 
Ilbert,  42. 

Illegitimate  descent  (Bk.  4,  Civ.  Codct,  65,  7^  ff.,  85. 
Illing,  1S0. 

Immaterial  rights,  50,  89  ff. 
Imperial  insurance  office,  124,  133. 
Imperial  military  court,  164. 
Incorporeal  rights,  50,  89,  91. 


INDEX 


219 


Industrial  accident  insurance,  124,  133. 

Industrial  Code,  135. 

Industrial  courts.  1  ,'■ 

Industrial  occupations.  137. 

Industrial  property,  89. 

Infants  (Bk.  4.  Civ  Codi  IT  ,  85. 

Inheritance  (Bk    -.  Civ    <  ode),  45,  66.  72  ff.,  86. 

Inheritance  taxes,  87. 

Injunctions,  80. 

Inland  navigation,  six. 

Innkeepers  (Bk.  2,  Civ.  Code),  63,  72  ff.,  80;  136. 

Insolvency.  116. 

Insurance: 

Accident,  no.  122.  132. 

Cattle,  119. 

Commercial.  1 18. 

Fire,  119. 

Guaranty.  1  [9, 

H.til,  1 1<>. 

Industrial  accident,  134. 

Invalidity,  1       1  ■.  1 

Life,  119. 

Marine,  10S,  109. 

Mercantile,  1    1 

Old  age,  las,  U4- 

Orphans,  124. 

Private,  1 18, 

Si*  kness.  iaa,  131. 

Social,  i3i  ff. 

Unemployment,  135. 

Widows,  1 34. 
Insurant'       en) 
Insurant  eCodi        ;  ff. 
Insurance  i  ontract,  119. 

[nterest(Bk.  .-.Civ.  Code),  63,  73  ff.,  80;  98  ff. 
International  labor  office,  1 
International  law,  private,  68,  69,  [47,  148, 
Intcrnationalekrim.  ver.,  158,  170. 
Internationale  biMii^iMpliic,  1    . 

Interpret- it I)     it.  i,  147. 

Intestate  succession  (Bk,      '1     Codi  ff  ,86. 

Invalidity  insurance,  iss  ff  .  134 

Isclin,  05. 

Jacket,  m. 

Jaeger.  103,  116,  117 

Jahrbucfa  d,  arbeitervcrsicfa 

Jahrbucfa  d.  deut  rcchts,  8s. 

fahrbuchd   int.  vcr.  f.  gewerb   rechtsschuU   9 

Jahrbucfa  <l  offenl ,  rei  bts,  174. 

Jahrbucfa  d.  rechtsprg.  (verwaltungsrecht),  1S5. 

Jahrbuchd.  verwaltungsrechts,  185. 

fahrbucb  f.  entscheidungen,  18. 

Jahrbucfa  f.  gesetxgebung,  186. 

Jastrow,  37.  is*- 

Jatzow,  59. 

Jellinek,  173,  174,  176,  188. 


Jhering,  26,  34.  35,  89,  x83. 

Geist  des  rum.  rechts,  35. 

Kampf  ums  recht.  36. 

Zweck  iin  recht,  36. 
Jhering's  Jahrbucber,  89. 
Johow,  x8,  57. 

Joint  creditors  (  Bk.  3,  Civ.  Code),  63,  7.-  ff.,  80. 
Joint  debtors  {Ilk.  1,  Civ.  Code).  63,  7a  ff.,  80. 
Joint  ownership  |  Bk.  2.  Civ.  Code),  63,  72  ff.,  80. 
Judgments,  execution  of,  141.  [48 
Judgments,  execution  of  foreign,  [48. 
Judicial  assistance  in   interstate  or   international 

procedure,  147. 
Judicial  organization.  141. 
Judicial  sale,  148. 
Judiciary  Act,  141  ff.,  S58. 
Jurisdiction,  federal,  141. 
Jurisdiction  over  foreign  stati , 

Jurisprudence.  21  ff. 

Jurisprudent  germaniae,  rj. 

Juristic  acts  t  Bk,  1.  Civ.  Code),  62,  -2  ff. 

Juristic  persons  1  Bk.  i,  Civ  Code),  63,  ;.•  ff. 

Juristic  persons  (public  law),  173,  183 

Juristic  survey,  21  ff 

Juristische  novitatcn.  1  2. 

Juristische  wochenschrift,  B9. 

Juristisches  literaturblatt,  11. 

Jury  courts,  143,  161,  163,  170. 

Justice,  administration  of,  36,  141,  15$.  172. 

Kahler.  (63 

Kahl.  166 

Kamptz,  iS] 

Kant.  27. 

Kantorovicz,  38. 

Eaufanann,  98. 

Keil,  185. 

Kent.  <),;. 

1    1 

Kipp.  54,  75. 

Kirihenlieim,  12. 

KleiiiMlmi.lt,  158. 

Kobncr,  178. 

Koch: 

Banking  law,  1 14,  1 15. 

Landre  lit ,    i. 

Zivilprozess,  145. 
Kocourck.  at,   ■  > 
Kohler,  .'7,  .-*.  (s,  J9l    ,   .  88,  ■  17.  I  ,7.  185,  188. 

11    G.  H  .  70 

Biii  erlii  hen  re<  bts  ■  ing,  11; 

Cons,  Ci mi.  Carolin  1  ,i 

GinfUhrung,  23. 

1  ti  j  klopadie,  24 

Pe  i    j,,    , 

Gewerbl.  rcchtsschutx,  97. 

Kunsi  wcrkrei  ht ,  ox. 

Musterreeht,  93, 


220 


INDEX 


Kohler— Continued. 

Patentrecht,  92,  93. 

Rechtsphilosophie,  39. 

Urheberrccht,  90. 

YYarenzeichen,  94. 
Kohne,  87. 
Konig,  1S2. 
Konige,  101,  103. 
Konigsberger,  127. 
Kopelke.  143. 
Koppmann,  163,  164. 
Korkunov,  23,  31,  37. 
Kormann,  182. 
Krause.  J.,  163. 
Krause,  K..  29.      « 
Krctzchmar,  149. 
Kriegsmann,  165,  167. 
Kritische  blatter,  12. 
Kritische  ucbcrschau,  12. 
Kritische  vierteljahresschrift,  12. 
Kubel.  57- 

Kuhlenbeck,  71,  113. 
Kultur  dcr  gegenwart,  24. 
Kiinlzel,  88. 
Kunze,  181. 
Kurlbaum,  57. 

Laband,  89,  171,  172,  175,  171.  ps,  183,  185,  ci 
Labor  contract,  139. 
Labor  laws,  135  ff. 
Lalor,  36. 

Land  charges  (Bk.  3,  Civ.  Code),  6s.  7-  ff..  Si. 
Landlord  and  tenant  (Bk.  2,  Civ.  Code),  63.  72  ff.,  80. 
Landmann.  13S. 
Landrecht,  Prussian.  47. 
Land  registry  act,  64,  70..  81,  151,  152. 
Landsberg,  42. 
Langen,  114. 
Lasker,  56. 
Lass,  125. 
Lasson,  28,  31. 
Law  catalogues,  11. 
Law  reform,  147.  164. 
Law  reports,  i>. 
Layer,  S^. 

Layman's  courts,  142,  171. 
Leader.  112,  113. 

Leases  (Bk.  r,  Civ.  Code),  63,  72  ff.,  80. 
Lcbbin,  96. 
Lederlin.  145. 
Led  lie,  52. 
Lee.  5i. 
Lcfroy.  33. 

Legacies  (Bk.  5.  Civ.  Code),  66,  72  ff.,  86. 
Legal  education,  18. 
Legal  encyclopedia,  21. 
Legal  ethics,  iS,  150, 
Legal  history,  41. 
Legal  philosophy,  :-. 
Leges  barbarorum,  42,  47,  48. 


Legislation,  14. 

Legitimation  by  subsequent  marriage  (Bk.  4,  Civ. 

Code),  66,  72  ff.,  Ss. 
Lehmann,  Karl,  103. 

Aktiengesellschaft,  104. 

Handelsgesctze,  99. 

Handelsrecht,  102. 

Rezeptionen,  49. 
Lehr,  So,  120. 

Leipziger  ztschr.  f.  handels-  konk.  u.  vers.-wesen,  103. 
Leonhard,  R..  34- 

Allgemeiner  tei!  B.  G.  B.,  77. 

(Eck),  76. 

Studien.  77. 
Leonhard.  \V.,  168. 
Leonhardt,  56. 
Lcrminier,  33. 
Leroy,  139. 
Leske,  71,  143 
Lcssing,  ii4- 
Letters  rogatory.  14S. 
Levis,  86. 
Lewinski.  20.  14  i. 
Lewis-Boyens,  no. 
Lex  Salica,  48. 
Library  of  Congress,  12S. 
Licbermann,  47. 
Licbmann.  187. 

Liens  (Bk.  2,  Civ.  Code),  63.  72  ff..  So 
Liens,  maritime,  10S. 

Liens,  mercantile  (Bk.  3,  Com.  Code),  99,  108. 
Liepmann,  164,  170,  171. 
Life  insurance,  119. 
Lightwood,  36. 
Lilienthal.  15S,  i6*»,  170. 

Limitation,  statutes  of  (Bk.  1.  Civ.  Code),  62.  72  ff. 
Limitations  of  time  (Bk   1.  Civ.  Code),  62,  72  ff- 
Limited  liability  company  or  partnership,  105. 
Limited  partnership  (Bk.  2,  Com.  Code),  99  ff. 
Lindemann,  152. 
Liszt.  156,  158,  165.  166,  167,  170. 
Literary  property.  89. 
Loans  (Bk.  2,  Civ.  Code).  63.  72  ff"-.  80 
Lobe,  95. 

Local  law.  applicat ion  of  ( Introd .  A ct ,  Civ ,  Code),  68. 
Loening,  177 
Locwy,  42,  72. 
I.'ihr.  115. 

Lorenzen,  20,  68,  113. 
Lorimer,  29. 
Lost  instruments,  141. 
Lotmar,  55,  140. 
Lowe.  160. 
Lowrie,  177. 
Maas.  13,  72,  88. 
McXeal,  49. 
Magnus,  94. 

Maintenance  (Bk.  4.  Civ.  Code).  66.  72  ff.,  85. 
Maitland,  9,  43,  47,  58,  78. 


INDEX 


221 


Makower.  101. 

Manager 

Mandate  i  Bk.  a.  Civ.  Code*.  63,  7a  ff.,  80. 

Manes.  1 10,  121,  1 16,  127. 

Manorial  rights,  I  - 

Marine  insurance,  108. 109. 

Maritime  law,  10S. 

Marklr; 

Marker,  86. 

Markets  and  (air-:,  ]  i7. 

Marquardsen,  173. 
Marriaee  ( Hk.   4.  Civ.  Cod 
(Introd.  Act,  Civ.  Cod< 
Marriage  contracts,  registration,  Bsi  151. 
Martitz.  i8a. 

Matrimonial  causes,  procedure  in.  141. 
Matrimonial  liability  for  debts  (Hk.  4,  Civ.  Cod 

72  ff..8S. 
Matrimonial  management  and  use  of  property  (Bk. 

4.  Civ.Codi  ,  85. 

Matrim<jni.il  rights  in  property  (Bk,  4.  Civ,  Code). 

65,  72  ff  .  B5. 
Maurer,  50. 

Mayer,  Otto,  178,  179,  183.  185. 
Meat  inspection  laws.  96. 
Medical  jurisprudence,  [68 
Mendelssohn-  Bartholdy,  147. 
Mentzel,  126. 

Mercantile  register  '  Bk.  1.  Com.  Code),  98. 
Mercantile  trader.    Ilk    1,  Com.  Code).  98  IT. 
Mercantile  insurance,  114. 
Merchants'  courts,  148. 
Merkel,  22.  165. 
Merzbacher,  115. 
Meszlens 
Methodolo ry,  20. 

1 
Meyer,  t '.,  1 j .-.  170. 
Meyer,  II ,,  156. 
Meyer.  Hermann,  14;. 
Miaskowski,  128. 
Military  criminal  law,  163. 
Military  duties.  1  76. 
Military  law 
Military  Penal  Codt 
Miller, 
Mine  labor,  137. 

ind  mining,  <>:.  122,  136,  137,  172. 
Mingling,  of  things  (Bb    .,  Cm    Codi  n    -< 

Mint/.  92. 
U  ■  1 1  ;  ■  ■  entation 

Mistake  (Bk.  1.  Ci\    1  ode),  I    .        B 
Mitchell.  <>4. 

Mitteilungen  d.  Berlin  geweTbegerichta, 
Mitteilungen  d.  tat   kriminalist.  vtr,  1 
Mittilstein.  81,  111. 

Mittermaier,  154,  1  171 

Modderman,  53. 
Modern  criminal   1  U  n<  c  series,  168. 


Modem  legal  philosophy  series.  40. 

Mold,  173,  175,  180,  r{ 

Mommsen,  188. 

Moud,  130. 

Monopolies.  117. 

Montague,  117. 

Monumenta  germaniae  bistorica, 

Morris 

Mortgage  (Bk.  3,  Civ  Code     65,  7a  ff.,  81;  151. 

Mori  sage  hank  law,  n>. 

Moseley,  159. 

Motives.  Civil  Code,  59  ff. 

Mugdan,  17 

Materialien.  61. 

Vormundschaft,  86, 
Miihlbrecht,  11. 
Miiller,  90. 

Musical  copyright   90. 
Musicians,  127,  136. 
Nagler,  167. 

National  Monetary  Commission.  114,  115. 
Nationality,  67,  176. 
Navigation,  inland,  m. 
Navigation,  insurance,  133, 
Navy,  163.  172. 

Negligence  (Bk.  2.  Civ   Code).  c>4,  72  ff.,  80. 
Negotiable  instruments  (Bk.  2.  Civ.  Code),  64,  72  ff.. 

Ho;  112.  141. 
Negotiable  instruments,  custody  of,  115. 
Ncitzcl.  So.  82,  151. 
Nelken,  140. 
NTeue  bucher,  13. 
Neukamp.  1  1  ; 
Ncukirch,  107. 
Neumann.  Sy. 

Handausgabe,  B.  C..  B..  73, 

Jahrbuch, 

Rechtsprechung,  16. 
Newspapers,  law  of,  91. 
New  trial,  1  I'- 

N'iendorff,  81. 

Non-contentious  jurisdiction,  i.|S,  151. 
Notarii  s,  >    1 .  1 

Novation  (Bk    t.Cii    1  ■  ■■'■  72  ff  .  80. 

«  iheniei  k.  Ba,  1  sr. 

1  ^ligations  I  bk.  ■.  Civ. Co  li  ff.,  7--  ff  .  to. 

Obli    ition   to  bearer  (Bl  Cod  ff.,  So, 

1  iertmann,8o,88. 
S»  huldverfa   Itni 

<  Ktker.   If'l. 

aerecht  d     1    1  awart,  1  las,  173. 
1  >ld  .1. 1  in  in. hi.  - .  .     ,134 
» tlshati 

Jahrbuch,  88. 

Strafgesetzbuch,  1 

StraJ  1  ung,  155. 

1  Ushausen,  Th,  186. 
Opct,  8s. 


222 


INDEX 


Oppenheim,  185. 

Orders  and  drafts  (Bk.  2,  Civ.  Code),  64,  73  ft".,  80. 

Orphans  insurance,  134. 

( 'sterrieth: 

Gewerblicher  rechtsschutz,  96. 

Patent  entscheidungen,  94. 
Ownership  (Bk.  3,  Civ.  Code),  64,  72  ff.,  Si. 
Ownership,    acquisition   and   loss   of   (Bk.   3,   Civ. 

Code),  64,  72  ff  .  81. 
i  >u  niTship  of  vessels,  10S. 
Pagenstechcr,  147. 
Pandektenrecht,  54. 
Pape,  57. 
Pappenheim,  110. 
Pardessus,  48. 

Parent  and  child  (Bk.  4,  Civ.  Code),  66.  73  ff.,  85. 
Parisius,  105,  106. 
Parmclee,  168. 

Partition  of  common  lands,  67. 
Partnership  (Bk.  i,  Civ.  Code).  62,  72  ff. 

(Bk.  2,  Civ.  Code),  63,  72  ff.,  80. 

( Introd.  act.  Civ.  Code).  68. 
Partnership,  business  (Bk.  2,  Com.  Code),  99  ff. 
Party  walls  (Bk.  3,  Civ,  Code).  04,  72  ff..  81. 
Patents,  law  of,  92. 
Paupers,  183. 
Penal  Code,  151. 

Penal  Code,  preliminary  draft  of  new,  166. 
Penology,  16S. 
Pensions,  civil  service,  1S3. 
Pensions,  old  age,  134. 
Perels,  no. 
Performance   of    contracts   (Bk.    2,   Civ.  Code).  63. 

7a  ff..  So. 
Personal  status  registration  act,  S5. 
Persons  (Bk.  i,  Civ.  Code),  62,  72  ff. 
Peters,  147. 
Petersen,  132,  145. 
Pfaff,  14- 
Pfafferoth,  149. 
Phillimore,  84. 
Phillips,  142, 159. 
Philosophy  of  law,  34. 
Photograph  copyright.  91. 
Photographers,  136. 
Physicians,  136. 
Piece  wage,  139. 
Piloty,  131,133,173.174,182. 
Pineles,  45. 
Pinkus,  139. 
Pinner,  101, 103. 
Planck,  G..  57,60. 

Kommentar,  74. 
Planck,  J.  J.,  46. 
Piatt,  100. 

Pledge  (Bk.  2,  Civ.  Code),  63,  72  ff.,  80. 
Pledge  of  movables  and  of  rights  (Bk.  3.  Civ.  Code). 
65,  72  ff..  81. 


Police,  172, 179. 

Police  magistrates,  169. 

Pollock,  9,29. 

Poor  relief,  183. 

Posener,  72. 

Possession  (Bk.  3,  Civ.  Code),  64.  72  ff.,  81. 

Post,  27. 

Pound,  9, 30. 32j33»38,  147. 168. 

Pozl.  13. 

Preemption  (Bk.  3.  Civ.  Code).  65.  72  ff.,  81. 

Premiums,  119. 

Prescription: 

(Bk.  1,  Civ.  Code),  62.  -2  ff 

(Bk.  4,  Com.  Code),  108. 
Prescription,  ownership  by  (Bk.  3,  Civ.  Code),  64, 

72  ff.,  81. 
Press  law,  91. 

Prcuss.-deut.  gesetzsammlung.  14. 
Prisons.  169. 
Privatrecht,  49. 
Privileged  communications  (in  manufacturing  and 

business),  95. 
Probate,  87, 151- 
Probate  court,   jurisdiction   of   wills   (Bk.    5.   Civ. 

Code),  66,  73  ff.,  86. 
Procedure: 

Administrative,  r.Si. 

Civil,  140, 171. 

Criminal,  15S,  171. 

Ex  parte,  151. 

Feudal,  143. 

Insurance,  124. 

Noncontentious,  151. 
Procuration  (Bk.  1,  Com.  Code),  99. 
Production  of  chattels  and  instruments  on  demand, 

(Bk.  2,  Civ.  Code),  64.  72  ff-.  80. 
Products,  acquisition  of  (Bk.  3.  Civ.  Code),  64,  7a 

ff..  81. 
Property  (Bk.  3.  Civ.  Code).  64.  72  ff  ,  81. 
Protests,  113. 
Prussian  Landrecht,  51. 
Public  law,  171  ff. 
Public  officers,  136,179-183. 
Publisher,  rights  of,  90. 
Puchta,  188. 

Outlines,  22. 

Pandekten.  55- 

Vorlesungen,  55. 
Punishment,  169. 
Purchase  and  sale: 

(Bk.  2,  Civ.  Code),  63,  72  ff.,  80. 

Mercantile  (Bk.  3.  Com.  Code),  99. 
Pure  food,  96. 
Railroad  accidents,  122. 
Railroad  passengers,  123. 
Railroads,  106,122. 
Railway  labor,  13S. 
Randolph,  112. 


INDEX 


223 


Rassow,  88. 
Rath,  60. 

Ratification  (Bk.  1,  Civ.  Code),  62.  72  ff. 
Rausnitz.  152. 

Real  property  1  Hk     ;,  Civ.  Code).  64.  72  n\.  8>".  Ms- 
Reatz,  60. 

Reception  of  Roman  law,  57. 
Recht.  Das,  89. 
Rechtslehre,  25. 
K«.\litslexikon,  24. 

Reehtsprcchun«  d.  oberhandels^erirht,  17. 
Rechtsprechuiig  d.  reichsk'crieln 
Rechtsprechung  z.  Res.  zivil  etc  .  recht,  iS. 
Reform  of  civil  procedure,  147. 
Reform  of  criminal  law  and  procedure,  164. 
Regelsbcrncr.  55. 
Reger,  17. 

Registration  of  births,  marriages,  and  deaths, 85. 
Registration  of  documents,  etc.,  151. 
ion ol  title,  64. 70. 

Rehbcin,  52. 

Rehearing,  mi. 

Rehm,  105. 1 14, 120. 

Reichsgericht,  16. 

Reichsgcrichtsraten,  74. 

Reichsgesetzblatl ,  14 

Reichsoberhandelsgericht,  16. 

I  'tun  fee,  5-' 

Reitzenbaum    g 

Relation  of   Code  to  imperial  law   (Introd.   Act, 

Civ.  Code).  67.  69. 
Relation   of   Code  to  state  law  (Introd.   Act,  Civ. 

Code),  67,  69- 
Relativcs,  maintenance  of  (Bk.  4,  Civ.  Code),  61 

7-'  ff.,85. 
Release  (Bk.  2,  Ch    Code),  63,  72  ff.,  80. 
Remeli 

Renton  &  Phillimore,  ^4. 
Rents  (Bk.  .-.  Ci\    Cod  11  .  So. 

Renvoi  [Introd   Act,  Civ.  Code),  68. 
Report      1     ■     1 
Representation  (Bk    i.  Civ   Codt    ,  62,  73  ff. 

lonsibility  of  the  state.  179, 183 
Restraint  of  trade,  1 17. 
Review,  1  \i 

Revocation  o(  will  (Bk    5,  Civ   Codi 
Reward  (Bk.    .  Ch    Code),  63,  -j  ft*..  So. 
Richter,  106. 
Riesser,  ioj,  115. 

R  iezler,  91. 

Rights,  in  and  over  land  1  Rk    j,  Ci\ '.  Code  1,  64,  72  IT. 
Rights,  substantive,  adjective  (Bk.    j,  Civ.  Code), 
,-•  ff..  77  ff. 
.,i  way  ■'  Hk    ;,  Ci\    Codi  fl  .    1 

Ring,  iS.  ss,  104. 
Ringros< 
Rittmanu.  150. 
Rohmer,  138. 


Roman  law,  54, 

Rose.  36. 

Rosenmeyer.  107. 

Rosin.  1  ii. 

Rossbcrg.  15. 

Roth.  51.  57. 

RothUsberger,  91. 

Rumpf,  33. 

Runduagel,  107. 

Rundstcin,  us. 

Sale  (Bk.  2,  Civ.  Code).  63.  72  ff..  80. 

(Bk    3.  Com.  Code),  99  ff. 
Saleilles: 

Declaration  dc  volonte,  79. 

Introduction,  73. 

Obligation,  Si. 

Personnes  iuridiques,  78. 

Salic  law  ,  48. 

Salmond,  34. 
Salvage,  108. 
Sanitariums,  136. 
Sartorius,  86. 
.  1S1. 
Sauer.  85. 
Sa\  igny,  26,  ?9.  30,  188. 

Conflict  of  laws.  31. 

( Ibligationenrecht,  54. 

Possession,  84. 

System,  54. 

Vocation  fur  legislation,  30. 
Savings  bank  societies,  137 
Saxon  Code,  47,  52. 
Schaeffle, 
S«  haps,  109. 
Scheel,  1  53. 
Schierlinger,  1 55. 
Schirrmeister,  20. 
Schlossmann,  81. 
Sell  in  id,  ra6. 
Schmidt,  57,  97.  1S5. 

Zivilprozess,  146. 
St  hmoller,  186. 
Schneider,  120. 
Scholz,  174- 

Schools  of  crirninal  law,  u<  1, 
S<  hools  of  ini  isprudence,  .'s  ff. 
Schr&der,  R.  K..  H.,  Rechtsgeschichte,  44, 6x. 
.1  hio,  der,  E.: 

Grundbuch  Entw  h 

Vonnundst  ha 
Schulte,  I    P 

ECirchenrecht,  177. 

Rechtsgeschichte,  44. 

Si  Inili/e  Oorlitz,  1  si. 

Schultzenstein,  151.  185. 
Schulz,  ia6,  138,  148. 
Schulze, 

Schuster,  A.  P.,  99,  10s,  n*. 


224 


INDEX 


Schuster,  E-  J., 42, 47,  58,68,  70,80,84,98, 100, 113, 130. 

Principles,  72. 
Schwarzenberg,  153. 
Scott.  16S. 
Seamen's  Act,  109. 
Seamen,  109. 
Seckel,  55. 

Securities,  deposit  of,  115. 
Security  and  bail  (Bk.  1,  Civ.  Code).  62,  72  ft". 
Self-defense  (Bk.  1,  Civ.  Code).  62,  72  ft 
Self-help  (Bk.  1,  Civ.  Code),  62.  72  fT. 
Seligsohn,  93. 
Senckpiehl,  107. 
Separate     property — matrimonial     (Bk.     4.     Civ. 

Code).  66,  72  ff.,  86. 
Separation,  judicial  (Bk.  4.  Civ.  Code),  66.  72  ff..  86. 
Sequestration,  148. 
Servitudes,  real  and  personal  (Bk.  3,  Civ.  Code).  65. 

72  ff..  81. 
Set-off  (Bk.  2.  Civ.  Code),  63,  72  ff.,  80. 
Seuffert: 

Archiv.  17. 

Civilprozess,  145. 

Konkursprozess,  116. 
Seydel,  S3. 
Sheriffs,  149. 
Ships  and  shipping,  108. 
Ships'  officers,  127. 
Sickness  insurance.  122  ff.,  131. 
Siegel,  44. 
Sievekiug,  109. 
Silberberg,  118. 
Silbernagel.  103. 
Simeon,  76.  150. 
Simon,  150. 
Singer,  92,  94- 
Skilled  laborers,  136. 
Slander  of  credit  or  goods,  95. 
Smith,  Munroe.  20,  21.  55,  58,  171. 

Jurisprudence,  32. 
Smithers,  70,  113,  r68, 
Social  insurance,  121  ff. 
Social  legislation,  S,  121,  172. 
Societies,  unincorporated,  62,  78. 
Sociological  school  of  criminal  law,  167. 
Soergel,  18,  89,  185. 
Sohl,  163. 
Sohm.  52,  177. 
Sokalowski,  54. 
Sommer,  169. 
Spahn,  60. 

Specific  performance,  80. 

Specification  (Bk.  3,  Civ.  Code).  64,  72  ft"  ,  81. 
Spiegel,  23. 

Staatsrechtliche  abhandlungen,  174. 
Stadthagen,  140. 
Stahl,  28. 


Stammler,  188. 

Richtigen  recht,  38. 

Theorie,  38. 

Wirtschaft  und  recht.  38. 
State,  the,  1S3. 
State,  theory  of  the.  175. 

Statute  of  limitations  (Bk.  1.  Civ.  Code),  62,  72  ft". 
Statute  law,  14  ff. 
Statutory  regime  over  matrimonial  property  (Bk.  4, 

Civ.  Code),  65,  72  ft".,  85. 
Staub.  89. 

Gesellschaften  m.  b.  h,,  105. 

Handelsgesetzbuch,  101. 103. 

Vertragsverletzungen,  80. 

Wc-ehselordnung,  113. 
Staudinger,  74. 
Steidle,  164. 
Stein,  145. 
Stengel,  178,  1S0. 
Stenglein,  156,  157. 
Sternberg,  37. 
Stier-Somlo,  185. 

Reichsversicherungsordnung.  126. 

Sozialgesetzgebung,  131. 

Sozialrecht,  135. 

Vereingesetz,  79. 
Stintzing: 

Popularen  literatur,  53. 

Rechtswissenschaft,  41. 
Stirling,  29. 
Stobbe: 

Privatrecht,  50. 

Rechtsquellcn,  44. 
Stock  corporation  (Bk.  2,  Com.  Code),  99,  103. 
Stock  exchange  law.  114. 
Stockholders  (Bk.  2,  Com.  Code).  99  ff. 
Stoerk.  185. 
Stolzel,  86.  182.  1S7. 
Storck,  174. 

Strafprozess-reform  und  Iaien-richter,  171. 
Stranz,  113. 

Streams  and  water  courses,  67. 
Strohal,  89. 

Erbrecht,  86. 

Sachbesitz,  84. 
Struckmann,  145. 
Studien   zur  forderung   des   gewerblicheu   rechts- 

schutzes,  y;. 
Sturm,  37. 
Succession  and  descent: 

(Bk.  5.  Civ.  Code),  66,  72  ff..  86. 

(Introd.  Act,  Civ.  Code).  68. 
Succession  taxes,  87. 
Summary  proceedings,  141. 
Sumner,  138. 

Supreme  court.  16.  141.  143. 
Suretyship  (Bk.  2,  Civ.  Code),  64.  72  ff.,  80. 


INDEX 


225 


iti  thercchtswissenschaft,  24. 
Systematisches  handbuch  d.  dent,  rechtswissen- 

schaft.     See  Binding. 
Tarilvertrag,  139. 
Taussig,  132. 
Taxation.  i;i.  178. 
Taxation  (guilds  and  unions),  137. 
Testament  (Bk.  s,  Civ.  Code),  66,  72  fl\,  86. 
Testamentary  charges  fBk.  5,  Civ.  Code 
Testamentary  succession  (Bk.  5,  Civ.  Code),  w>.  ;a 

ff.,86. 
Tezner,  1S1. 
Theory  of  law,  25  ff. 
Thibaut.  30. 

Things  I  Bk.  3l  Civ.  Code),  64.  72  ff.,  81. 
Things,  consumable  (Bk.  i,  Civ.  Code  ,  6a,  7-'  ff- 
Thomsen.  186. 
Time,  conditions  and  limitations  1  Bk.  1,  Civ.  Code), 

62.  71  ff. 
Time  wage,  139. 
Tingle,  176. 
Title,  transfer  and  conveyance  of  (Bk.  3,  Civ.  Code  . 

64.  72  ff..  81. 
Torts: 

(Bk.  2.  Civ.  Code),  64,  72  ff-.  80. 
(Introd.  Act.  Civ.  Code),  68. 
Trade  guilds,  122. 
Trademarks,  registration,  94,  151. 
Trade-names  (unfaii  competition 
Trade  regulations,  135  ff. 
Trade  unions,  137. 
Traders,  mercantile  (Bk.  1,  Com.  l 

nun,  136. 
Trading  companies,  98  ff. 
Transfer  and  com  eyance  <>f  ownership  (Bk. 

Code).  64,  72  ff,  81. 
Transitory  provisions  of  Civil  Code,  67  ft* 
Transportation.  172. 
Mv  rail,  106. 
By  water,  108. 
Tribal  laws.  47. 
Triepel,  175,  180. 
Triimplcr,  114. 
Trust,  equitable,  78. 
Trusts  and  monopolies.  117. 
Trutzer,  134. 
Tuhr,  77. 
Turnau,  82. 
Tutors,  127. 

i  Krsicht  d.  ges.  lit.,  11. 
Ullmann,  13. 
Ulrica,  1 1 1. 
Unauthorized  management  of  others'  affairs  (Bk.  3, 

Civ.  Code).  03,  72  ft*.,  80. 
l   viiient.  135. 
Unfair  competition,  94  ff. 


Unger,  161. 

Unincorporated  societies  (Bk.  1,  C:v.  Code),  62,  72 

ff,,  78. 
Unjust  arrest,  compensation  for,  162. 
Unjust  conviction,  compensation  ft 
Unjust  enrichment  (Bk.  2,  Chr. Code),  64.  72  ff.,80. 
Unknown  claims,  141. 

Unlimited  partnership  (Bk,  »,  Com.  Code),  99  ff. 
Useful  models.  93. 

Usucaption  (Bk.  3,  Civ.  Code),  r>4.  :-•  ff-.  81. 
Usufruct: 

(Bk.  1.  Civ.  Code).  62,  7^  ff- 

(Bk.  3,  Civ.  <.'  it.,  81. 

Vangerov 
Veditz,  137. 

Vergleichende  darstellung  (Civ.  Code),  71. 
Vergleichende  darstellung  (Crim.  law),  166. 
Vering  trial.  160. 
Verwaltungs-archiv,  185. 
Vessels,  108. 
Vierhaus,  58, 151. 
Vierteljahres  katalog,  13. 
Vinogradoff.  53. 
Vital  statistics,  85. 
Void  and  voidable  marriages  (Bk.  4.  Civ.  Code),  65, 

72ff,85. 
Vossen,  79. 
Wach.  14-.  e8& 
Wachter,  1S8. 

Wagering  contracts  (Bk.  2.  Civ.  Code),  64,  72  ff  .So. 
Wagner,  no. 

Waitz,  Salische  Franken,  48. 
Walker.  1 17. 
Walter: 

Corp.  jur.  germanici.  47. 

Rechtsgeschichlc,  44. 
Walton.  70. 
Walz,  20. 
Wang,  42t72. 

Warehousing  (Bk.  3.  Com.  Code).  99  ff. 
Warneycr,  17. 
Waters.  t>r-  in. 
Way.  right  of  (Bk.  3.  Civ.  Code).  64-  7*  ff-.  81. 

Weber,  von 

Wegweiscr  durch  d.  lit.,  n. 
Weights  and  measures,  95. 
Weiss,  96. 
e,  86. 
Weissler,  152. 
Wcndt,  109. 
Werthcim,  187. 
Weyl,  131. 

Widows  insurance,  124  ff. 
Wigmore,  9.41,168. 
WiUenbtU  lu-r,  150. 
Willoughby,  137. 


V  —  1: 


-15 


226 


INDEX 


Wills  (Bk.  5.  Civ.  Code).  66,  72  6".,  86;  151. 
Wilmowski.  116. 
Wilson,  80, 116. 
Windscheid,  35, 57, 188. 

Pandektenrecht.  54. 
Winthrop,  163. 
Witnesses,  experts,  149. 
Woedtke,  132,134. 
Wdlbling,  139. 
Wolf.  149. 
Wolff.  75- 

Women  (in  factories).  137. 

Work  and  services  (Bk.  2,  Civ.  Code),  63.  72  ff.,  So. 
Workmen's  insurance.  121  ff. 
Workmen's  associations,  137. 
Workmen's  relief  societies.  137. 
Wbrterbuch  d.  deut.  verwaltungsr.,  1S0. 
Worterbuch  d.  engl.  rechts,  187. 
WulrTen,  169. 
Wuttig,  11. 

York-Antwerp  rules,  in, 
Zachariae,  175,188. 
Zueher,  129,130. 


Ztschr.  d.  Savigny-stiftung,  45. 

Ztschr.  f.  deut.  burg,  recht  und  franz.  zivilrecht,  89. 

Ztschr.  f.  deut.  zivilprozess,  151. 

Ztschr.  f.  d.  ges.  handelsrecht  (Goldschmidt).  103. 

Ztschr.  f.  d.  ges.  staatswissenschaft,  185. 

Ztschr.  f.  d.  ges.  strafr..  13, 15S. 

Ztschr.  f.  d.  priv.  u.  orient,  recht.  185. 

Ztschr.  f.  gewerb.  rechtsschutz,  97. 

Ztschr.  f.  industrierecht,  97. 

Ztschr.  f.  koloniaipolitik,  178. 

Ztschr.  f.  politik,  185. 

Ztschr.  f.  rechtsgeschichte.  45. 

Ztschr.  f.  vblkerrecht  u.  bundes-staatsrecht.  185. 

Zeumer.  175, 180. 

Zimmerman'  56,160,161. 

Zitelmann: 

Einfuhrungsgesetz.  69. 

Vorbilding.  19. 
Zoepfl: 

(ed.,  Clement),  48. 

Rechtsgeschichte,  44. 

Staatsrecht,  175. 
Zorn,  172. 


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